LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: Trying to decipher the few Kaua`i county documents that are available at the web site is kind of like doing a Sudoku puzzle. They somehow add up to something but it takes a lot of work to figure out exactly what the sum is.

But since we committed yesterday to filling in the blanks through the use of the clues the county left, we’ve gotten a hold a text copy of what appears to be the thus-far “secret” proposed county charter amendments (see pp 12-18) we’ll all be voting on on November 2.

Apparently, although there’s no indication that they were ever approved by the Charter Review Commissions, a September 3 letter from County Clerk Peter Nakamura to state Chief Elections Officer Scott Nago transmitted seven questions, in time for them to be included on the actual ballot.

While they appear to be “official” we’ll have to wait and see when and if they were approved, not that the county won’t go ahead with them illegally anyway if they weren’t.

We’ll go over them briefly here with deeper analysis to come.

The first is the same old question that’s been asked and answered- in the negative- innumerable times but for some reason it’s on the ballot again. The ballot question reads

"Shall the term of office for councilmembers be extended from two to four years with a limit of two consecutive four year terms?"

When will these people accept that we like being able to recall our council every two years. They’re unaccountable enough already without only having to worry about the what the electorate thinks every four years.

We want to see an amendment saying that you can’t propose the same amendment more than once every 10 years.

The second is a response to the call for a county manager and eliminates the position of administrative assistant and creates a position of “Managing Director”.

The question on the ballot will be:

"Shall the Mayor's Administrative Assistant, whose title shall be changed to Managing Director, be required to have appropriate job qualifications and perform certain duties?"

Here’s the exact language to be added to the charter, describing those “job qualifications” and “duties”

The mayor shall appoint and may remove a managing director. The managing director shall be a citizen of the United States not less than thirty (30) years of age and a resident elector of the county at least three years immediately prior to his appointment. The managing director shall have at least five years experience in an administrative or managerial position with at least a bachelor's degree from an accredited institution in public administration, business or a related field.

A. Powers, Duties and Functions. Except as otherwise provided and under the supervision of the Mayor, the managing director shall:

(1) Serve as the mayor's principal administrative aide.
(2) Oversee the administrative functioning of all administrative departments.
(3) Prescribe standards of administrative practice to be followed and evaluate the management and performance of all administrative departments under the director's oversight.
(4) Attend meetings of the council and its committees upon request and provide information and reports as they may require.
(5) Perform all other duties as required by the charter or assigned by the mayor.

B. The salary for the managing director shall be set pursuant to Article
XXIX of this Charter.

Better than nothing.

The third is a new one on us and we’ll have to take a good look at it to figure it out. The question on the ballot asks:

"Shall the Charter provisions relating to centralized purchasing and disposition of surplus property be changed to conform with State law?"

The wording contains many additions and deletions and can be viewed on p 15 of the pdf linked above.

Number four is pretty self explanatory and the ballot question will read:

"Shall the dollar limit without competitive bidding for contracts with County officers, employees or firms in which an officer or employee has a substantial interest, be increased from $500 to $1,000?"

On first blush unless someone can make a pretty good case for it anything that makes corruption easier- as this would by allowing people to get paid twice as much by the county without triggering a competitive bid- $1000 rather than the current $500. If anything what's been called “the $500 loophole”- with the law having been avoided through serial $500 contracts- should be being plugged.

Number five is pretty self explanatory and reads:

"Shall the County extend from six months to one year the timeframe prohibiting the County from entering into a contract with a former County employee or a firm that is represented by a former County employee, for those contracts where the former County employee participated in the subject matter while employed with the County?"

This sounds like an improvement although we’d like to see two years or more to stop the “revolving door” which is one of the most corrupt of practices in the county and elsewhere.

Sixth is an amendment that apparently plugs a loophole on disclosures and asks

"Shall any employee delegated to act on behalf of the Director or Deputy Director of Finance be required to file a disclosure statement with the County Board of Ethics?"

We’re not sure what the problem is but apparently some in the finance department can act for the director and don’t have to disclose their potential conflicts of interest. It sounds good but we’ll have to take a good look at it in total.

Finally number seven is one we’ve been expecting and we’re ready to fight tooth and nail. It asks:

"Shall the time in which the County Board of Ethics has to render advisory opinions be extended from 30 days to 45 days, which opinions shall be binding on the Board, unless changed or revoked by the Board?"

The incompetence and even malfeasance of the Board of Ethics (BOE) has been well documented in this space (see left bar for our special report or click the link above for all our coverage of the BOE).

Why can't they make their decisions in a timely manner? To increase the time allotment just gives them more time to fumble and futz around trying to misread the plain reading of the charter and law. If they need to call special meetings, so be it. If they don’t have enough people for a quorum, get people who can show up.

An extra 15 days won’t really help these people. Thirty days has been plenty for over 40 years and it’s only the appointees under this and the last administration that seem to have a problem getting these advisory opinions done promptly instead of throwing the person- and sometimes the county- into a crisis because they can't decide what the law says... or more often just don’t want to deliver the bad news or are in the same conflict themselves.

Well that’s the seven- read ‘em and weep. Maybe sometime before the election we’ll get the official word.

SLIP-SLIDIN’ AWAY

SLIP-SLIDIN’ AWAY: Hyperbole notwithstanding, the worst reporter in the world at the worst newspaper in the world, Leo Azambuja of our local newspaper, seems to be making an effort to learn what constitutes a “lede”- the journalistic slang for the “lead”, the opening sentence that covers the “who, what, when, where and why” in about 25 words or less, as part of the inverted triangle that puts the most important information nearer the top and the less important stuff further down.

So Azambuja’s article on the fate of the “county manager” proposal that was before the Charter Review Commission is, on the surface, a step forward as he reported:

Kaua‘i’s strong mayoral form of government won’t be changing this election.

After several community meetings, the Charter Review Commission’s Special County Governance Committee last week unanimously voted down a proposal to ask voters this fall if they would like to see the Garden Island governed by an appointed county manager instead of an elected mayor.

Now perhaps it’s our fault because in the virtual reams of criticism of Azambuja’s apparent lack of journalistic training or ability we forgot to mention the most important part of the lede- that the information be ACCURATE.

Silly us for thinking that that went without saying.

As we reported a day short of a month ago, in actuality, according to the recommendation section of the SCCG’s Report to the Kauai County Charter Review Commission- which apparently Azambuja failed to read critically, understand or comprehend:

Special Committee on County Governance, by unanimous vote, recommend(ed) against placing a measure for a Council-Manager form of government on the 2010 General Election ballot. The committee, accordingly, recommends the adoption of this report, and further recommends that the issue of a Council-Manager form of government be postponed indefinitely.

What actually happened “last week”- at the July 26 meeting of the full Charter Review Commission to be precise- is that the full commission voted to accept the recommendation of the SCCG- something Azambuja could have found out by going to the county web site he cited as an information source at the end of the article, since he apparently failed to attend the all important meeting.

From there it only gets worse. So we decided to use the skills we gained as a teaching assistant to the legendary local newspaper editor Jean Holmes while she taught-and we attended- her journalism classes at Kauai Community College in the 80’s to take a blue pencil to Azambuja’s Adventures in Newswriting Wonderland.

Next Azambuja writes:

“The large majority of people didn’t see it as a desirable necessary change from the current situation,” said Patrick Stack, who chairs the three-member committee. North Shore resident Joel Guy and former reporter Jan TenBruggencate are the other members.

While that’s technically accurate it’s omits the most important information showing that he didn’t understand the SCCG report because, as we reported, they plainly based their recommendation on the a rationale that makes the decision anything but arbitrary or capricious, saying:

The Special Committee was constrained by the authority given the Charter Review Commission under the existing Kaua`i County Charter. Section 24-03 of the County Charter contains this authority: "In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter which shall be submitted to the county clerk." (Emphasis added) This is a key point. The Charter Review Commission is not authorized, as many public testifiers suggested, to place an item on the ballot simply to allow voters to express their choice.

Instead of emphasizing or even reporting that- as the SCCG did- Azambuja chose to stress what the committee insisted did not influence their decision at all writing:

“The large majority of people didn’t see it as a desirable necessary change from the current situation,” said Patrick Stack, who chairs the three-member committee. North Shore resident Joel Guy and former reporter Jan TenBruggencate are the other members.

From there the writing itself becomes a bizarre exercise in trying to write about something Azambuja didn’t quite get, as evidenced by his incorrect lede. He “writes”:

If the commission approved the proposal, voters would decide at the next election Nov. 2 if the mayor should be replaced by a county manager.

That tortured bit of the mother tongue mixes the future looking “if” with the past tense “approved” returning to the future “would decide”. The correct way to express the thought might be to say:

"If the commission HAD approved the proposal, voters would HAVE decideD at the next election Nov. 2 if the mayor should be replaced by a county manager."

In addition this indicates that somewhere he did understand that it was the full commission not the SCCG that acted last week although he could have just conflated the committee and the commission. Either way it’s particularly mis-informative in any number of ways.

One of the rookie mistakes made in J-School is the unattributed opinion over which the prof usually scribbles “Sez who?”. And skipping down a little further is this language-challenged, unattributed “Azambujism”:

If the measure would be adopted, it would likely be stricter to meet qualifications for the county manager than for the U.S. president.

We won’t even attempt to dissect or diagram that one.

One of the things a newswriting class teaches is to avoid negative characterization of the person you are quoting. There’s noting wrong with the neutral word “said” but, unless it’s well explained and under extreme circumstances where it’s called for, reporters should avoid using pejorative terms like “claimed”, “boasted” or “admitted” or use of prejudicial adverbs. But in characterizing a quote from Glenn Mickens. a proponent of the county manager proposal, Azambuja wrote:

He admitted the county manager system wouldn’t be a cure for all, and if it didn’t work, the island could return to the mayor system of governance.

You get the idea.

Back in the 90’s our solid waste mess was almost as bad as it is today and then-Mayor Maryanne Kusaka was called before the council to explain why, given the “crisis” she insisted on having the bumbling, bungling, uneducated and inexperienced Troy Tanigawa in charge of the Solid Waste Division of the Department of Public Works- someone activist and original “nitpicker” Ray Chuan used to characterize as one of the “protecteds”.

Even when, after council interrogation, it became apparent Tanigawa- who is still in the position today- was incapable of handing the situation Kusaka wouldn’t give up on Troy telling the council she was willing to “send him back to school” rather than replace him.

Though we all rolled in the council chambers isles at that one perhaps if Editor Nathan Eagle won’t look for someone with basic newswriting skills from among the many out of work journalistic casualties of the Honolulu newspaper “merger” debacle- and pay them more than the local paper’s notorious starvation wages- at this point we’d even settle for the “Tanigawa Solution”.

Or at least spring for a textbook Nathan.

(PNN) SPECIAL COMMITTEE NIXES COUNTY MANAGER PROPOSAL; SAYS NO TO NOV. BALLOT PLACEMENT

SPECIAL COMMITTEE NIXES COUNTY MANAGER PROPOSAL; SAYS NO TO NOV. BALLOT PLACEMENT

(PNN) -- The proposal for a county manager form of government on Kaua`i will not appear on the ballot this November if the Charter Review Commission follows the recommendation of its Special Committee on County Governance (SCCG).

According to the recommendation section of the SCCG’s Report to the Kauai County Charter Review Commission:

The Special Committee on County Governance, by unanimous vote, recommends against placing a measure for a Council-Manager form of government on the 2010 General Election ballot. The committee, accordingly, recommends the adoption of this report, and further recommends that the issue of a Council-Manager form of government be postponed indefinitely.

After five meetings and three public sessions held across the island, Chair Patrick Stack and members Joel Guy and Jan TenBruggencate ultimately decided that, in keeping with their charge according to the county charter itself, they could not place the matter before the voters despite what they called “frequent, long-term and. well-reasoned arguments in its favor by a small group of committed citizens”

According to the report:

The Special Committee was constrained by the authority given the Charter Review Commission under the existing Kaua`i County Charter. Section 24-03 of the County Charter contains this authority: "In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter which shall be submitted to the county clerk." (Emphasis added) This is a key point. The Charter Review Commission is not authorized, as many public testifiers suggested, to place an item on the ballot simply to allow voters to express their choice.

The committee found the key phrase to be “necessary or desirable” after they compiled an actual 78 page Proposal for a County Manager Form of Government based on a submission from a group called “Citizens Ad Hoc Committee for a County Manager System”.

The committee did note that, although the charter commission has to find the changes necessary or desirable there are two other ways to get charter amendments on the ballot- via citizen petition or via county council resolution, neither of which have the restrictions the commission does.

The proposal document was complied by the committee by going through the county charter, page by page and word by word, replacing the word “mayor” with “county manager” where applicable, giving instructions for designating the chair of the county council as the “mayor”, listing methodologies for the appointment of the manager and listing qualifications for the job as well other changes.
The document has not yet been cleared by the county attorney’s and attorney general’s offices according to the report which also notes that none of the committee members are attorneys. The report does not say whether it be submitted to those offices before it comes before the full charter commission for a vote.

Despite questions raised as to whether the meetings, and especially the document produced- were covered by the sunshine law, according to one of the members of the Citizens Ad Hoc Committee, Glenn Mickens, the Office of Information Practices told him that the committee’s activites were exempt from the open meeting law under section 92 2.5 as long as the full commission dealt with the report according to the sunshine law provisions.

The report describes the changes that were made in the proposal saying

(t)he draft charter proposed a county governance system in which citizens would elect six members of a County Council, and would separately elect a Mayor. The Mayor would sit as chair of the County Council and would have limited administrative authority.

The Mayor and County Council would together select a professional County Manager. The County Manager under this system would be charged with the administration of county affairs, including the appointment of department heads unless otherwise provided for in the Charter.

But while the committee noted that the majority of those that they heard from were opposed to putting the measure on the ballot, the report say that:

(w)e note that in passing, but counting votes is not the Special Committee's assignment.

An important measure is whether the proposed system passes legal muster, which requires an opinion. from the County Attorney and/or the state Attorney General. We have not received a legal opinion on this specific proposal. State law requires a "county executive, administrative and legislative structure."

That structure is required in two different parts of the law of our state: Article VIll of the state constitution and Hawaii Revised Statutes Section 46. But making legal determination is not our assignment.

The Charter Review Commission's authority and thus the Special Committee's authority under the County Charter is to "study and review the operation of the county" and to recommend changes that it feels are "necessary or desirable." Setting aside our own judgment is not within our authority. If the members of this Special Committee were to move forward an issue the committee members do not feel is necessary or desirable, simply to give voters a chance to make a selection, we would violate our oaths to defend the County Charter.

Our assignment is to determine, after our own honest, extensive and considered review, whether the proposed form of government is a better form of government for this county at this time, or if it represents a necessary change. If we believe that it is, then we should recommend putting it on the ballot. If not, we should not.

The “findings” section of the report weighs the current mayor-council and county manager systems and lists the benefits and limitations of both concluding by saying that:

(t)he Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

The full finding section reads as follows:

The Special Committee on County Governance finds that a Council-Manager form of government is a viable means of governing a municipality. The Committee finds that the Council-Mayor form is also a viable system, and one with a long history in Hawaii and on Kaua`i. The Special Committee finds that a large majority of individuals testifying or otherwise providing information to the committee favor retaining the current Council-Mayor system, for a variety of reasons. One often repeated reason was to have a direct voice in the selection of the county administrator, rather than an indirect voice through selection of a county manager through a single Mayor-Council panel.

The Special Committee finds that a key argument for the Council-Manager form of government is that it provides for an administrator for the county who has specific education and experience in management. The Committee finds that such experience could also be mandated for a mayoral aide under the current Mayor-Council system.

The Special Committee finds that a County Manager would be unable to function with the flexibility envisioned by some proponents due to legal limitations on his/her authority. In part, this is because under existing state law and county charter provisions, a County Manager would not be able to appoint many of the county's chief department heads. State law requires the personnel director and liquor control department head to be appointed by commission, and county charter requires the planning director, water department manager and the police and fire chiefs to be appointed by commission. A Mayor is similarly limited in oversight.

The Special Committee finds that the County Manager system removes certain cheeks and balances from county government, including the veto power of a mayor over legislative measures, and the development of a recommended budget under an elected administrator and its approval by an elected legislative body.

The Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

According to the Charter Review Commission section of the county web site no meetings of the commission are scheduled yet.

WHIPLASH

WHIPLASH: The use of tasers by police and what constitutes “excessive force” has caught our attention lately as it’s been impossible to find out what KPD’s policy was and/or is in light of a recent federal 9th Circuit Court ruling in Bryan v. McPherson which limited their use.

That’s why a Maui news headline- reprinted in the Honolulu Advertiser in place of their own neighbor island coverage- that said Maui officer's use of Taser on woman not excessive, court rules.

Seems the use is on a case by case basis with limits on both ends being established on the fly.

But it was the very last paragraph of the story that really caught our attention saying:

Former Deputy Corporation Counsel Laureen Martin argued the case. Deputies Corporation Counsel Richard B. Rost and Cheryl Tipton also represented the officers and county.

Now there’s something- in fact a couple of things- that we’d fall over backward in our chair if we read on Kaua`i.

The first is that they actually went, not just to trial but, to an appeal to the 9th Circuit “in house”- using county employees rather than hiring outside attorney’s at whopping prices as our “county attorney’s” office routinely (make that always) does.

The second is of course the “corporation counsel” system employed in every other county in the state.

It comes on the same days an another entry from seemingly blind and deaf Judge Al Laureta asking what specifically is wrong with our charter despite our treatises on the subject.

Although he asks in the context of the county manager proposal, a reorganization of the broken county attorney (CA) section of the charter is a good place to start.

One of the main problems is the inherent conflict embedded in our charter that empowers the CA to provide all legal advice to both the council and administration yet places the CA’s office within the administration giving the council little or no say- other than confirmation- in the department.

Reform of the CA’s office- whether electing the CA under the current set up or restructuring under a "corp counsel" system- seems a no brainer yet it has never been on the radar screen for the charter review commission (CRC).

The current system has been costing us millions every year to hire Honolulu law firms. It’s about time to see if the CRC can walk and chew gum at the same time and if not, instead of pouring their time into re-asking for the umpteenth time about four year council terms and fighting against putting effort into putting together an appropriate county manager proposal they might concentrate on fixing the most broken of all county departments.

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Yesterday we inadvertently left out a link under “problems with the county’s sustainability plan” to Jan TenBruggencate’s piece on the subject, New county energy sustainability plan draft released which identifies many of the troublesome aspects much better than we could including the use of the word ridiculous and annoying word “disincentivize.”

STRAW MAN STRONG MAN

STRAW MAN STRONG MAN: The great talking-past-each-other debate on the “proposed” county manager (CM) system between retired former Judge Al “let ‘em go” Laureta and county watchdog Glenn “hope springs eternal” Mickens continued in the letters to the editor column of the local newspaper today with “Yogi” Mickens “it’s better because it’s better” response to Alfred E. Laureta’s “what, me worry?” demand to know “what’s broken” in Kaua`i county government.

As we’ve said before while we aren’t exactly on the CM conga line we certainly can articulate what the some of the problems are and have done so especially in the past month or so albeit in a cursory manner.

We hope to try to get into some more detail as to what doesn’t work and what kind of specific changes to the charter would be appropriate to address those impediments to good governance over the next few weeks.

But another letter today, this one from Democratic party leader Linda Estes, brings up an issue that has been bandied about although, from Estes letter, it apparently is largely misunderstood.

Everyone we’ve heard speak on the matter contends that Kaua`i has a “strong mayor” system. But Estes makes an argument that in fact:

Kaua`i has a weak mayor form of government because the mayor cannot appoint several of the department heads. Civil Service, Police, Fire, Water, Planning and Liquor are critical departments in county government and the mayor, at this time, cannot appoint the people to head those departments. If he cannot appoint them, how can he hold them responsible for the operation of their departments?

The proposal to put those departments under the direct authority of the mayor should be on the 2010 ballot. Then, if it passes, the people of Kaua`i can decide at a later date if they prefer a county manager or a strong mayor form of government.

First of all the term “strong mayor” derives from what the mayor’s powers are as opposed to those of the county council’s- the traditional balance of power between legislative and administrative branches of government.

The strongest parts of the mayor’s powers on Kaua`i stem from the total ban on any interference by the council in administrative matters enshrined in our charter.

The only way the council can compel the mayor or his/her appointees to appear and answer questions is under one provision that requires the council to launch an official investigation to do so. Otherwise, as we detailed recently, the administration can refuse to even explain how it plans to spend- or in fact did spend- the money the council appropriated or acted upon a piece of legislation passed by the council.

That’s why you see the words “requests the presence of the administration to discuss...” on council agendas.

Another strength of our administrative branch is the power to appoint almost every single member of the administration- except for the county attorney and those that, as Estes points out, are appointed by a board or commission - without confirmation by the council.

Here too the mayor, as most all administrators do, naturally has more power than the council since he selected the members of those boards and commissions (B&Cs) for the most part and the council can only disapprove them. As a matter of fact the council cannot even remove them without the mayor asking that they be removed.

There are some B&Cs where the mayor and council each appoint three members each and those members select one more. But, illustratively, it should be remembered that the original charter did not have this provision and it only arose because of the strength of the mayor... it’s an example of how the original charter was designed to provide for an extremely strong mayor.

There are other provisions that strengthen the mayor’s power as opposed to those of the council but essentially the mayor has a thumb on the balance of power everywhere except for appropriating money or passing ordinances.

Even there there is diminished accountability and, as we’ve seen, administrative rules promulgated by the administration sometimes carve out loopholes in ordinances that are less than specific- some that actually conflict with the law- leaving the council the option of liking it or lumping it... or suing the administration in court, as happened in the “constitutional” budget crisis during the Yukimura administration

The six departments that Estes cites are the exceptions and were set up that way because those specific departments it was thought would be the most subject to political interference and members of the public should be entrusted to make the hiring and firing decisions- with the “check” on their power being that they are appointed and confirmed by elected officials.

But few can argue that that system has worked well. What has happened in practice is that because the department heads have no set terms after which they must face re-approval or renewal of their contracts it becomes almost impossible for a board to remove them.

As a matter of fact there is no procedure for removal of the appointee in the administrative rules any of board with appointment power.

With the staggered three year terms and a two term limits for B&C members after a while few of any of those who appointed the department heads are on the current board and the employee becomes the boss and in fact mentors the members and advises them when they meet.

As a matter of fact, some members have no idea that they are empowered to remove the department head if they want to. And most wouldn’t know how to do it if they did.

Estes suggests that putting them under the mayoral appointment system would solve that problem. But then we’re right back where we started with politics playing a large part in the hire, no council approval and of course a lack of continuity when administrations change- which, when these appointing B&Cs were originally set up, could have been every two years.

But rather than throw out the baby with the bathwater a few fixes might be in order.

The first is a set term for board-appointed department heads. A charter provision calling for a standard contract length- say three years although it could be otherwise- along with a template for a required re-evaluation and re-hire protocol would go a long way to re-imbue the members with a sense that they are indeed in charge.

A charter provision could be somewhat detailed or leave the fleshing out to an ordnance and administrative rules. But right now there is no standard and these department heads become entrenched serving for decades without so much as an opportunity for their appointing authority to really look at their job performance without appearing to be “making waves” or “rocking the boat”- something that, on Kaua`i almost insures they will not be serving on B&C’s very long as the recent Rolf Bieber episode so clearly demonstrates.

Other than the police department we can’t think of a B&C that ever removed a sitting department head... or even attempted to do so. And technically the police commission didn’t do that either, causing the political free for all surrounding Chief KC Lum’s “removal” (he actually retired).

But the contention that Kaua`i has a weak mayor system and that strengthening it is the answer is to cherry pick one “exception that proves the rule” and use it to define the whole system rather than taking a broad perspective when examining the charter and how it plays out in reality.

A charter amendment calling for all mayoral appointments to be confirmed by the council would go a long way toward equalizing the balance of power along with a modification of the strict no-interference clause. Many jurisdictions allow for subpoena power for the legislative branch without launching a formal investigation- and in fact legislative approval of all department heads is the norm across the country.

As we’ve said before, with a requirement for a certain educational and experiential standard and council approval the current charter provision for the Administrative Assistant (AA) could become the very “county manager” that proponents seek. Perhaps the addition of an independent panel that would submit of list of possible hires would be a wise addition to the process of selection of the AA.

We’ll try to get into more specific problems with the charter and possible fixes over the next month or so but suffice to say that the same ends that the CM proponents seek could be accomplished through narrower targeted amendments to the structure expressed in the charter without scaring the b’jeezus out of a citizenry that may be adverse to a “rewrite” of the charter” and/or “eliminating the mayor”- both things that amount to “experiments” and rightly make voters apprehensive.

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We’ll be playing with our new chew toys and a bit intermittent over the next two week. If we’re not here, we’re there- so there, hear?

POLITICAL WON’T

POLITICAL WON’T: Our post Wednesday on the flakey “opinion” given to the charter commission regarding the county manager issue drew a couple of comments that deserve exposition, on an issue we kind of glossed over because it seemed to be self-apparent to us- but obviously not to everybody.

Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked

...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.

Attorney blogger Charley Foster was of course more to the legal point saying

I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.

So let’s look at the words in the relevant constitution and statue passages.

In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:

Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.

Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...

HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.

Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).

Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.

As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive

All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.

And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.

It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.

We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.

Trask writes:

According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).

Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).

So let’s look at Trask’s arguments one by one:

The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.

Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.

Trask continues:

Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.

We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.

He then seeks to establish what may be called a four prong test.

The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:

1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.

True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.

2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.

It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.

And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?

3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.

We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.

4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.

Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.

Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.

The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.

-------

Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.

Doug also asked

... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?

That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.

Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.

For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.

Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.

But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.

The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.

But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.

Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.

But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.

Clear as mud?

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With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.

PAWED AND FLAWED AGAIN

PAWED AND FLAWED AGAIN: While sitting around kibitzing and kvetching in the council chambers with our pal Tony Sommer, former Honolulu Star- Bulletin Kauai Bureau Chief and author of “KPD Blue” he used to routinely pronounce judgment on the foibles and folly with one of his favorite sayings- “when you work for the king you carry the king’s sword”.

And that’s apparently the case with Deputy County Attorney Mauna Kea Trask’s newly released opinion on the proposed county manager system, obtained by the local paper’s ace reporter Mike Levine and posted on line to accompany his article on the document.

We’ll have a more detailed analysis as soon as we get a hold of an “OCA” text copy so quoting it isn’t a chore, but on first blush it appears that Trask simply self-selected his own bowling pins, set them up and knocked them down in a string of straw-man arguments replete with out-of-context suppositions and red herrings in order to declare the concept of a county manager system generally illegal in Hawai`i and maybe the country.

After glossing over the fact that the opinion is proposal specific- based on the unbelievably flawed document authored by Walter Lewis in an attempt to exact revenge for the county’s supreme court victory in declaring his “’Ohana” property tax charter amendment null and void (as we detailed last month)- he then attempts to use a broad brush and questionable interpretations of a passage in state law to argue that any CM system would be illegal, not just in Hawai`i but in the country in general.

Two examples stand out for their disingenuousness.

Unbelievably, after quoting case law requiring those interpreting state law to take the plain meaning at face value and not try to read something into it, Levine accurately reports

Section 46-1.5 of the Hawai`i Revised Statutes states that each county’s charter “shall establish the county executive, administrative and legislative structure and organization,” a phrase that “is interpreted by the County Attorney’s office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager system form would not have.”

If that isn’t reading into the words “county executive, administrative and legislative structure and organization,” that there must be a certain structure including a mayor and council it’s hard to imagine what would be.

The other we’ll discuss today- because it’s refereed to not just in the article but in a post by attorney-blogger Charley Foster who also apparently misses the point in Trask’s completely out of context use of one contention that accompanies the specific proposal.

As Foster writes:

Beyond the legal analysis, the county attorney goes on to strenuously argue against the county manager proposal on policy grounds, proposing answers to a number of criticisms of the current mayoral system. I especially like the attorney's response to what really is the most clueless of the criticisms:

The current exectutive branch of government interferes with the council's ability to enact public policy laws and investigate subjects for which it is responsible.

To which the attorney correctly replies –

This criticism misses the whole point of the American form of representative democracy that utilizes a system of checks and balances.

The problem is that if one actually read the passage in the proposal it specifically and uniquely refers not to general policy but to the main problem that has spurred some to support the CM system- the fact that the council has no ability to compel administrative personnel to come before the council to explain anything without an official investigation and subpoena, including on matters that the council must decide.

This was illustrated last year when the last council questioned the methodology- reported exclusively here, here and here- that the Department of Personnel uses to “reallocate” jobs- some say in order to manipulate the civil service system to place a mayor’s favored but unskilled choice in a job in place of a appropriately skilled and experienced hire.

But when the council tried to ask Personnel Services Division Malcolm “Mel” Fernandez to come before the council and explain himself, he actually refused.

But really what do you expect? We’ve been ambivalent from the start of a CM form of government and many of Trask’s political and policy arguments and criticisms are well founded- although what they’re doing in a legal analysis is a mystery.

They come from not just the overstated benefits contained in Lewis’s proposal- as drawn up and submitted by former charter commission member, the late Walter Briant- but from the actual piss-poor proposal which was apparently hastily drawn up by substituting the words “county manager” for the word mayor in the county charter and then adding a brief description of the method of appointment.

We’ve recommended from the start that the proponents slow down and properly study all relevant matters including the state constitution and laws, the political culture on Kaua`i, the real world way our system currently works- and doesn’t work- and an examination of the literally hundreds of different CM set-ups in use around the country (which certainly belies Trask’s contention that they violate the national constitution and national laws) and draw up a well considered specific proposal... something Trask even admits might pass legal muster before he contradicts himself.

We’ll have more when we get the OCA version and go over it but on first blush, as with another Trask penned option, it appears this one is also “fatally flawed”.

A TALE OF TWO WALTERS

A TALE OF TWO WALTERS: Every fortnight readers of the local newspaper are presented with the words of their only regular columnist, Walter Lewis from Princeville.

And this week, as usual, it’s chock full of disingenuity and in fact complete falsifications.

The problem is that we usually– though not always- generally agree with the “opinion” portion of his column but when it comes to presenting facts, Walter seems challenged especially when it comes to being able to disclose his own part in the events he reports upon.

This week’s two part entry would have you believe that Walter Lewis, the observer, is simply reporting and giving his opinion upon on the proposed “county manager” (CM) efforts of the later Walter Briant and his wife Carol Ann Davis-Briant who took over his spot on the charter review commission (CRC) when Walter passed away.

But in fact Lewis not only was the one who first proposed the change to a CM system but actually wrote the proposed amendment that he claims was written by Briant.

Lewis writes that “(b)eginning in 2005, citizens have thus sought support of the charter commission for the manager program” but fails to fully inform the public that in fact the one who originally “sought” it was Walter himself, seeking revenge after his “`Ohana” property tax proposal was struck down by the Hawai`i Supreme Court at the behest of the county council and mayor.

For those who forgot or weren’t around at the time- or didn’t follow the events- Lewis has started a small tight knit group that tried to instituted a California-style “Proposition 13” type property tax reform on Kaua`i, limiting property tax increases to a certain percent a year.

The timing was right. Lewis and his small group managed to not only get the measure on the ballot but have it passed by a huge margin by people who, at the time, were experiencing runaway yearly property tax increases that the council seemed unable or politically unwilling to deal with.

When the council and mayor filed suit to strike down the ballot measure and won in the Hawai`i Supreme Court Walter’s next move was to try to stick it to the electeds by changing the whole system.

Throughout the whole time the CM system was before the prior charter review commission PNN kept asking for a specific proposal since CM systems vary to the point where there are literally a hundred different ways to set one up and an equal number of details that would have to fit into the state system that provides a legal framework into which local jurisdictions must fit their system of governance.

Finally with Briant’s appointment we contacted him and asked for a specific plan and sure enough he produced one. We prodded and prodded and finally, after ascertaining through other knowledgeable sources inside Lewis’ “`Ohana" that it was in fact Lewis who had written the proposed amendment, Davis reluctantly admitted that it was indeed Lewis’ work.

(Note- Although our conversation with Briant was not for attribution at the time, Briant’s death ethically releases us from that obligation)

But Lewis, in his first installment Friday said:

“of the seven-member commission, only one member, Walter Briant, was willing to work for a manager proposal and to develop the details required for its consideration....

(H)e tried without any assistance from governmental or other commission personnel to structure a report on the subject that included a draft proposal containing his suggestions for issues necessarily involved in the proposal.”

Was Lewis intimating that this was Briant’s work, we wondered? Well it certainly was vague enough even though full disclosure on Lewis’ part should have included the author, especially since it was him.

But Saturday’s installment left no doubt Lewis was lying about who the author was, saying

It should be noted that the proposal to which the “opinion” was addressed was an initial draft by Walter Briant in which the “mayor” was to be chosen from among the council members. (emphasis added).

The rest of the Saturday’s “part 2” of the article seemed to center around a 9 page “letter” from the county attorney (CA) replete with Lewis’s lengthy characterizations of the letter. The problem is there is absolutely no reference to how Lewis obtained the letter, how he knows it was genuine or any link to the letter itself. As a matter of fact there wasn’t an actual relevant quote from it, just Lewis’ interpretation of what it said.

Given Lewis’s descriptions of the events in the first part- a combination of half truths and misrepresentations- it has to make you wonder what the letter actually said and if it made some good points about the challenges of instituting a CM system.

We’re not especially for or against a CM system on Kaua`i. While the fact that the prospect of having a professionally run administrative branch would be something that is not just exciting but would be new, it could be worse by consolidating power in the council and eliminating the check on their power.

It certainly could make things worse with the currently corrupt county council appointing some crony who happens to meet the qualifications - no matter how stringent- written into the law. Just look at their appointment from within of long time Deputy County Attorney Ernie Passion as the new County Auditor if you want an inkling of how they would operate if forced to select a “true professional manager”, as proponents would have people believe would certainly happen.

And that would be done in the absence of a potentially counterbalancing mayor.

It’s could just be a matter of “if your eye offends, you pluck it out”.

Of course, presuming parts of Lewis’ characterization of the CA letter are accurate, the CA has no business delving into the politics of the proposal when asked for the legality. But just because the CA is full of it doesn’t mean Lewis isn’t.

When we first read Walter Lewis’- not Bryant’s- draft we did a quick check of the state constitution and Hawai`i Revised Statutes (HRS). While the word mayor does not appear in the constitution we found no less than 13 references to county mayors- a post eliminated in Lewis’ current working draft upon which the CA was commenting.

Most of them are provisions that envision the person of the individual mayors of the counties as having the power of a mayor as the county systems are currently structured. Just look at the “approval” needed from mayors in the current state employee labor negotiations.

Seems the first thing needed to pass a CM system on Kaua`i is to convince the legislature to change the laws to allow for it.

The real problem in the CM system may be the proponents on Kaua`i. They have been seeking to rush through “anykine” CM proposal and every time anyone legitimately asks to slow down and look at it they are asked “why do you oppose the CM system?”- much as those who question the war are asked “why do you hate America?”.

There may well be a concerted effort to defeat the CM proposal by the CA, the council, the mayor and their sycophants on the charter review commission. But by ignoring the real concerns and screaming “conspiracy” the proponents have become their own worst enemy.

And they make it worse still by misrepresenting their own intimate involvement in the project by trying to appear the casual observer with an opinion.

Rather than trying to separate the legitimate questions and deal with them they try to lump all concerns together and characterize them as obstructive.

If the CM cheerleaders keep it up and allow Lewis to disingenuously be their passive aggressive and less then truthful spokesperson there may no one- not even potential fellow opponents- who will back up the efforts.

TROT VS. GALLOP

TROT VS. GALLOP: We spent the morning playing catch-up, watching last week’s “county manager forum” and were expecting a good presentation from David Mora, the West Coast regional director of the International City/County Management Association and probably a bunch of ill-informed clueless questions from the attendees.

While Mora didn’t disappoint, nothing could be farther from the truth on the latter point.

Anyone who cares about the future of county governance would be behooved to give it a gander or fire up the VCR tomorrow morning (Friday) at 8:08 a.m. and hopefully continuing over the weekend on Ho`ike Channel 53.

The questions asked revealed the breadth and depth of the project and made it apparent that there are myriad considerations that need to go into any new system.

One thing became clear about what Mora insisted we call the “Council/County Manager (C-CM)” system- there are as many ways to set up a system as there are jurisdictions and virtually no two are the same. Each reflects the needs of the community, compliance with the existing state constitution and laws and especially political history and culture of the area.

Other than saying he made clear that the position of mayor never disappears under a C-CM scheme we won’t go into all the devilish details but one thing is clear- if the particulars of the system we choose isn’t appropriate there will be the devil to pay.

That means that having the existing three person sub-committee of the Charter Review Commission meet once a month in untelevised thus practical anonymity and come up with a fully fleshed out and vetted proposal may be impossible and certainly is not appropriate for a plan of this magnitude.

Such a change would be many times more important to the people of Kaua`i than our General Plan (GP) Updates, another of which is due to begin after the next election.

Writing any “new charter”- which is what it will take to implement a C-CM plan- must be subject to the same level of public education, input and scrutiny as the GP updates including a citizen’s advisory panel, island-roving, televised meetings and all the public input possible.

If we don’t do that we are likely to produce a document that doesn’t reflect the needs and wants of a consensus of the people and guarantee that all that work will be for nil when people are asked to institute a new system of government that they don’t understand or particularly want with all the details being released next summer fully formed, each giving someone a reason to vote against it.

As we all know when asked to pass a ballot measure we don’t understand or aren’t sure we like, people will vote no.

If we go through all this and it is shot down it will be the death of any chance for a re-write of our charter to reflect the distance we’ve traveled since the current charter was written in the mid 60’s to reflect a plantation economy and society.

We ask the proponents of the C-CM system to slow down and instead of insisting we rush head-long into a potential flawed document without a community buy-in. We urge them to consider allowing the subcommittee to recommend a process similar to the one employed to come up with a GP, which is usually a two year process.

We owe it to ourselves to make this work and if it’s going to work, there’s plenty of work to do.

NEW LEADER, NEW PACK?:

NEW LEADER, NEW PACK?: One of the most contentious issues among the electorate if not the candidates during the election to replace the late Mayor Bryan Baptiste was the fate of the many department heads.

Charges of everything from total incompetence to crony-based malfeasance have been leveled against almost every one of the appointees some of whom have served two Republican administrations for up to 14 years

But in an article in today’s Honolulu Advertiser Democratic Mayor-elect Bernard Carvalho indicates he well may keep many of those under fire.

According to Diana Leone’s report

Carvalho won't announce any of his Cabinet members until he has the whole roster worked out, he said. He would only say that his appointees will include current county officials and newcomers.

"We don't want to burn bridges," Carvalho said of his decision to talk with each person who wants to stay on, instead of using the traditional group resignation to make way for a new mayor.

That indicates that those hoping for checks and balances to effectuate change when department head “confirmations” come up before the council may be in for a disappointment.

The article states that

Among the appointments will be an administrative assistant, who on Kaua`i functions as the deputy mayor; directors of the departments of finance, parks, and public works; the county attorney; and leaders of the economic development, housing, elderly affairs, transportation and public information offices.

The police and fire chiefs, and planning and emergency management directors are appointed by citizen commissions. As mayor, Carvalho eventually will get a chance to make appointments to those commissions, but only as vacancies comes up.

But here’s what the Charter says about whether the terms of department heads end with the swearing in of a new mayor

Section 6.04. Appointment and Removal of Officers and Employees.

A) The administrative assistant to the mayor and all department heads shall be appointed and may be removed by the mayor, except as otherwise provided by this charter.

Though it might appear ambiguous it does say they are appointed by THE mayor, not a past one. But the reality is that the council has absolutely no say over these department heads... with one exception.

According to Section 8.02.

The county attorney shall be appointed and may be removed by the mayor, with the approval of the council.

With that exception all department heads- whether created by Charter or by a vote of five members of the council- are appointed by the mayor or an overseeing board or commission with no say by the council.

Just for future reference this is the list of Charter created departments and the way their heads are selected.

Section 10.02. Appointment and Removal of Director or Finance. The director of finance shall be appointed and may be removed by the mayor.

Section 11.04. Chief of Police. The chief of police shall be appointed by the police commission.

Section 12.02. Fire Chief. The fire chief shall be appointed and may be removed by the mayor. (note- though this appears in the on-line version of the charter at the county web-site it has been replaced by a Fire commission which appoints the chief in a charter change made in the 2006 election)

Section 13.02. County Engineer. The county engineer shall be appointed and may be removed by the mayor.

Section 14.04 (Planning) Director. The planning director shall be appointed and may be removed by the (planning) commission.

Section 15.04. Director of Personnel Services. The director of personnel services... shall be appointed and may be removed by the (civil service) commission.

Section 16.05 (Liquor Control Commission).Director. The director shall be appointed and may be removed by the liquor control commission.

Section 17.04. (Water Board) Staff. The board shall appoint an engineer duly registered under Hawaii State laws pertaining to registration of engineers. He shall be known as the manager and chief engineer and shall be the head of the department.

Section 18.01. Civil Defense Agency. There shall be a civil defense agency whose powers, duties, functions and organization shall be as provided by law.

(note: The head of the Department of Parks and Recreation is also a charter created post but is also has not been added at the county web-site since it’s 2006 approval by voters but we believe, from memory, it is not an appointment subject to council approval)

Unfortunately, unlike almost every other jurisdiction in the county- and every one in the state- the laws of Kaua`i expressed in the County Code are not available on-line so it is difficult to establish which of the non charter-created agency heads might be subject to council approval, if any.- if memory serves there are none.

Assuming the answer is zero with the exception of the county attorney it seems that for all practical (if not political) purposes it doesn’t really matter whether Carvalho “keeps” department heads or reappoints those over whom he has to power of appointment.

Many wonder why the Kaua`i system of governance is referred to as a “strong mayor” system by many and this is one reason- the council has little or no power over the people who run the county,

The other is this short little ditty from the end of the county council charter section

Section 3.18. Restrictions on County Council and Council members. The council and its members shall not interfere with the administrative processes delegated to the mayor.

Except for the purpose of investigative inquiries under Section 3.17, the council or its members, in dealing with county employees, or with county officers who are subjected to the direction and supervision of the mayor, shall deal solely through the mayor. and neither the council nor its members shall give orders to any such employee or officer either publicly or privately.

The upshot is that the council is expected to appropriate money and enact the laws to run the county but has zero access to accurate information on the essential “how’s that going” questions.

And they have little or no recourse should they not get it.

The council essentially doles out cash and passes laws defining what administration personnel are supposed to do in a complete vacuum. They have to “request” the very appearance of a department head cannot even require that they tell the truth in their testimony.

This leads to citizen cries for fiscal responsibility on the part of the council without them having any tools to hold the administration personnel accountable for what they do with the money except on a voluntary basis

The council can of course launch a full fledged “investigation” where they can quasi-judicially swear in witnesses and compel accurate testimony

But an investigation is a high cost, time-consuming and unwieldy process that has never been used despite calls for a public works department investigation from citizens and even some councilmembers.

This has all led many to call for a new structure whereby a “county manager” would be hired by the council and the job of mayor would become strictly ceremonial.

But if the problems of a “strong mayor” system is in the lack of a balance- as in the term “checks and balances”- it seems the same might be said of an even “strong(er) council” system.

A more sensible approach might be to revise these two areas of the charter making all appointments of department and agency heads subject to council approval and allowing the council to initiate removal processes rather than waiting for the mayor to do so..

The second step would be to allow the council to compel the appearance of department heads to appear before them and designate their testimony to be subject to perjury-like charges of lying to the council.

The current set up isn’t working and the reason can be put squarely on the “strong mayor, weak council” system set up in our charter.

Some worry about a similar lack of balance in the new “strong council, weak mayor” system specifically detailed in the county manager proposal put before the charter commission by commissioner Walter Bryant this year.

It might be about time we actually take the time and energy to deconstruct the nuts and bolts of what is hanging up the machinery of county government and change the cogs enough to get this contraption running smoothly.

YOU CAN’T SMELLTHAT?

YOU CAN’T SMELLTHAT?: Rachel Gehrlein’s rather confused report today in the local paper about Monday’s Charter Commission (CC) meeting reports both a deferral and a “moving forward” of the controversial County Manager proposal being considered,

Thought the article lacks cohesion and continuity, as if written by the specter of Lester Chang, it does characterize and quote CC Chair Jonathan Chun this way:.

Commission Chair Jonathan Chun said he still didn’t see the need for the proposed amendment.

“What is the problem we are trying to solve?” Chun said. “No one, in my mind, has said what the problem is.

"Every time the question is asked, different answers are given, Chun said.

Maybe because so may things are broken and more are breaking all the time so like the procrastinating unhandy homeowner with the house that’s falling apart, every time you ask “what’s the problem” you get “a different answer”

So let’s assume for argument sake the quote and surrounding material is accurate. It brings up an interesting question

Are you friggin insane Jonathan or just a disingenuous liar trying to squelch the measure for some ulterior motive... because we know you’re not an idiot?

We haven’t exactly been on the County Manager conga line ourselves although we are starting to come around with Walter Lewis and Walter Briant’s specific proposal, even though the proposal itself is extremely problematic and poorly written, disregarding the 89 state laws that would have to be changed to accommodate the lack of an administrative “mayor”

But there are no problems with Kaua`i County government and the strong mayor system that makes every department head job a political appointee, Jonathan? Have you seen these bozos? Have you noticed how mayors are eaten alive when they try to get each new “temp” at the helm to get the department “we-bes” (we be here when you got here we be here when you go) to actually do anything differently?

Have you seen these people give what is laughingly called testimony before the council? Or were you just engulfed by “the fog” as they call it when mumbling incompetents who got their job by campaigning or collecting bundles of cash for the mayor try play their shell games.

The game typically goes like this.

Department head: “Oh I can’t answer that, Wendel has to tell you.”

Councilperson: Where’s Wendel?”

“He’s not here today”

“OK we’ll defer to next week and you get Wendel here”

Wendel comes in next week but no Department head and Wendel says “well I have to ask the department head for more information”

“Where’s he?”

“He’s out of town today”

“OK we’ll defer until next week”

Next meeting there’s the department head but no Wendel

“Wendel’s on vacation”

Finally they get Wendel and the department head there on the same day but either
A) They now say Clayton- who isn’t there- has the real information or
B) The department head testifies, then Wendel testifies and then when they want to get back to the department head he’s
1) left for lunch,
2) left for a meeting or
3) taken a plane to Honolulu

And on and on until the council gives up and moves on to the next calamity caused by an incompetent political appointee department head comes up on the agenda.

For god sake look at Ian Costa. He practically invented “the fog” as the unqualified de facto head of Public Works where he caused the grading and grubbing crisis a while back.

As Baptiste’s top bulldog during the campaign the barely-qualified. huge land-owner has taken an already traditionally incompetent Planning Department and driven it into the ground.

He’s got millions appropriated and set aside for unstarted planning studies and development plans and his rubber stamp planners and befuddled and sycophantic Planning Commission can’t even properly deny a permit the one time they try, getting sued for their incompetence to the point where the County Attorneys had to throw up their hands and settle for the worst development possible.

Then there’s- he’s baaaack- the latest whiplash-of-the-revolving-door largess recipient Wally Rezentes Jr. who can’t seem to get the hang of line-item budgeting so he ignores it since the council is still reeling over the “program based budget” system he officiated over during the Kusaka administration.

He quit the first time when the level of corrupt spending got so out of hand the Mayor was leasing luxury cars from her campaign manager at inflated prices and the Council only found out they gave her the money for it when they saw her driving around in it.

The patronage system we have today actually created jobs that didn’t exist for the truly unqualified like Bernard Carvalho. He preeminently glad-handed every voter he could find during Baptiste’s first Mayoral run and cashed in on his football fame to get appointed as a quasi department head in an insane, hybrid cant-decide-what-it-is Community Assistance conglomeration of Public Works, Planning and a couple of other departments. Then the voters created a Parks and Recreation department for him to screw up.

Guess who’s really responsible for the dog path fiasco? Try Bernard whose “task force” apparently just illegally made the pronouncement that the path was now a park (where dogs are illegal), neglecting to follow the state administrative rules law. He’s the same guy who put together the “task force” to put the teen rehab center in the old dog pound near the culturally iconic salt pans in Hanapepe creating a virtual lynch mob when people found out.

And what about the biggest plum of all- the Conventional Hall manager... a do nothing position that pays well and usually employs the mayor’s best buddy to collect perks and kickbacks by doling out favors under an ambiguous rate sheet system that never undergoes any scrutiny because it’s a separate world over there.

We don’t even want to talk about Public Works, the worst mess of all where the Kusaka and then Baptiste couldn’t even find a crony to fill the position for half of each’s administration.

And once they found a young bright and qualified sucker to take the job they beat down poor Donald Fujimoto into another cover-up artist and administration apologist.

He recently refused to answer Council questions regarding the illegal and crumbling Pono Kai sea wall without going into an illegal executive session even though all the illegalities had been thoroughly discussed in open session previously.

Seem like he’s learned well and will probably be moving on through the revolving door as soon as it’s convenient, which should be soon with a new mayor coming on board.

If Jonathan is not seeing the lack of professionalism in this and every administration and the level of corruption within each department as a problem he’d better either take off the rose colored glasses or quit the Charter Commission so we can find someone who has a little firmer grasp on reality.

We’re not saying the county Manager will do anything to change all of this. What it would do is theoretically make the administrative department heads subject to hiring and firing based on whether the job is getting done since the county manager’s job would be similarly held or lost.

Also, although the manager would be beholden to the political whims of the Council, what it would do in essence is put the decision-making out in the open since the Council would have some control over how the money is spent and a little better chance at getting truthful and transparent testimony out of department heads and other administrative personnel.

And it would take some of those secret decision-making sessions and “task forces” that aren’t subject to the sunshine law and put them, if not under it a little closer to it’s umbrella by having their testimony a little more compellable in open session.

But the critics are right in that if we do have “a” county manger system that it be “the” county manager system that is appropriate and acceptable to the people whom it serves.

It will indeed be an upheaval of political culture if not politics itself to have a new governance system.

The proposal from the two Walters is a start but it doesn’t seem ready for prime time and the deadline is a-comin’ well before we can be sure it’s the right one and one that’s even applicable to state laws.

The problems cited in the article as described by various politicians all have to do with this point- fully discussing and vetting the proposal and allowing the Charter Commission to focus on doing the job they are supposed to be doing in studying and vetting systems, compiling data, holding hearings and getting ready to present a full-formed. fully-discussed, fully “right for Kaua`i” proposal for the 2010 election ballot.

It’s time for people like Jonathan to stop feigning ignorance, acknowledge the mess this county’s government is in, much of it due to the patronage system that has evolved under our strong mayoral system.

Jonathan himself has certainly been employed by it long enough to know not only where the bodies are buried but how they got there.

It’s how, not why Jonathan. You’re almost all alone out on that limb. Whether there is a “how” that will be acceptable can only be found if we look for it.

Anyone with your brains knows what the problems are so don’t play dumb with us