IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT

IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT: Sometime it's an occasion for a straight rant, usually after an unusually pathetic, yet successful injustice has been perpetrated. But sometimes things are so enraging and we find it so hard to fit into our new and improved engagingly rabid outfit that we resort to a simple news report.

So after receiving word last week that the Office of Information Practices (OIP) decided to issue an "informal opinion" saying that Former Chair Kaipo Asing conspired with former County Clerk Peter Nakamura to go behind closed doors under false pretenses three years ago, in order to contain our rage we went with the just the facts, ma’am.

We were just going to leave it at that until yesterday when Joan Conrow carefully inserted the opinion in our craw speaking about how

former County Council Chair Kaipo Asing violated the sunshine law — three years ago. Yup, that's how long it took the OIP to rule on a citizen complaint. And even then, you still would have to go to court to void any action that was taken during an improperly noticed meeting, adding many more months to the process. It seems government transparency, absent expediency, doesn't really count for much.

ALL RIGHT, ALL RIGHT, ALL RIGHT. We can't get away with anything around here.

We did intentionally leave out the end of the opinion because to delve into what it truly meant would have generated enough ear-steam to power a small village.

It repeated one of the most egregious half truths in the annals of open governance. Under the title "Right to Bring Suit to Enforce Sunshine Law and to Void Board Action" it said:

Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.

This bit of butt-derived garbage directly conflicts with the state Sunshine Law which, in Section §92-12 "Enforcement" says:

(a) The attorney general and the prosecuting attorney shall enforce this part.
(b) The circuit courts of the State shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy.

Pretty clear, eh? Yet not one of the hundreds of of formal and informal opinions OIP has issued since 1989- especially the dozens that essentially called the actions of various boards unlawful- has been enforced by either the attorney general or any of the county prosecuting attorneys.

But how can that be- isn't the law clear as to their responsibility?

You'd think so- but noooooo.

Although it's been a while since the last time any attorney general has responded to an inquiry- and we don't believe there is a written opinion on the subject- when we did get an answer way back when, we were referred to the rest of the "Enforcement" section. It says:

(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body.

Though the reasoning is way too tortured for the way understand logic to work the gist of the AG's contention is that, because "(a)ny person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance," the AG will not do a damn thing and rather, will graciously allow one of those "any persons" do the dirty work.

The problem with that is two-fold. First of all the law doesn't say the AG may enforce this part it says (s)he "shall" enforce it.

For the second problem the first thing one must do is take a look at the next part of the Sunshine Law- §92-13 Penalties.

It says:

Any person who wilfully (sic) violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law.

Misdemeanors in the state of Hawai`i are punishable by not more than $1000 fine, a year in jail or both.

Yet §92-12(c) refers to the lawsuit a person files being "for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body. "

The problem that we're talking abut meetings where the board is about to go into what is essentially an unlawful secret meeting. So how would you stop them? With an injunction? Well, a certain conundrum is presented by the rest of §92-12. That bit of unreality says:

(d) The proceedings for review shall not stay the enforcement of any agency decisions; but the reviewing court may order a stay if the following criteria have been met:
(1) There is likelihood that the party bringing the action will prevail on the merits;
(2) Irreparable damage will result if a stay is not ordered;
(3) No irreparable damage to the public will result from the stay order; and
(4) Public interest will be served by the stay order.

As we said, it doesn't matter what the heck the likelihood is of a party prevailing, any irreparable damage or some kind of public interest because the deed will have already been done by the time a "person" files a suit... unless you have one of those Twilight Zone stop watches that can put the board meeting in suspended animation while you track down a lawyer who can track down a judge who can and will rush over to interrogate the board and issue an injunction.

Of course this is all practically moot these days because of a case called "OIP vs County of Kaua`i" which- leaving out all the juicy stuff involving the infamous ES-177, Asing, current Councilperson and former star of the book KPD Blue (see left rail) Mel Rapozo, former Finance Director and current Grove Farm Veep and Koloa Camp evictor Mike Tressler, the Kaua`i Board of Ethics, former Police Chief KC Lum and a cast of seemingly thousands- essentially defanged OIP and turned what used to be known as the best Sunshine Law in the country into a parody of open meetings laws.

Because all a person can do is file a civil suit and seek to overturn the actions. Even if this opinion wasn't three years old it doesn't seem to mean anything as far as the Penalty section is concerned.

Although in this case the opinion appears to say that the action was "willful"- especially since Asing and Nakamura refused to even respond to OIP inquiries- who exactly is there from whom to seek the criminal penalties... which, if we understand the American jurisprudence system correctly, is what is supposed to deter people from doing it again in the future, not encourage the action over and over by essentially saying the law is a joke.

Ah, crap- now we're thoroughly pissed off. Shoulda stuck with the news.

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.

INFORMATION TAR-TAR

INFORMATION TAR-TAR: Ever since the Office of Information Practices (OIP) lost the infamous ES-177 case- wherein the County of Kaua`i went to court to avoid releasing the minutes of an executive session despite apparent legislative intent to give OIP ultimate authority and ban such court action- we've kind of felt like the guy in the movies screaming in futility while spinning through the vacuum of space.

But recent attention has been paid by Civil Beat Editor John Temple prompting the OIP to defend itself- in a letter from the current director entitled "The Raw Truth"- for refusing to, as they see it, waste their time trying to claim their "teeth" that the court took away.

We're not going to try to rehash the long and winding road of ES-177 and CofK vs OIP again here but today Temple does point out a new wrinkle that puts OIP's finger-pointing at the legislature in a new light saying that under:

sections 92F-15.5 and 92F-28 of Hawaii Revised Statutes that the OIP has authority to hear and make binding decisions in appeals if it exercises its rule-making authority.

Apparently OIP has never bothered to promulgate Chapter 91 Administrative Rules to set up an appeals process for agencies who disagree with their Uniform Information Practices Act (UIPA) rulings to follow- one of Kaua`i County's major gripes in their suit having been the denial of "due process."

In addition today, another open records and meetings junkie, blogger/journalist Ian Lind takes a shot at OIP's defense by noting that in CofK vs OIP the court actually distinguished it from another case where OIP's authority was upheld, noting that "board meeting minutes are specifically covered by HRS Chapter 92, whereas development proposals, such as the ones at issue" in the other case, are not.

Of course the only reason the ES-177 case is finally getting statewide attention is that Governor Neil Abercrombie refused to adhere to an OIP decision on releasing the names of candidates for the Hawaii Supreme Court and then refused to reappoint the OIP director who made the decision.

But one thing that again occurs to us today, has bothered us since the first day the CofK decided to file suit.

Why exactly did the county bother to sue and not just ignore the OIP?

By filing suit they risked losing but by ignoring the OIP- as many are doing today, they apparently would have risked nothing. That's because of something that neither Temple nor Lind nor OIP itself has mentioned- something that really exposed the weak link in all of this.

According to the Sunshine Law under §92-12 Enforcement,

(a) The attorney general and the prosecuting attorney shall enforce this part.

The fact is that, because the law also says that anyone who doesn't agree with an OIP directive can sue in circuit court, attorneys general have consistently said that one must go to court first and so, they have refused to enforce OIP's opinions.

Thus the root of the claim that OIP is a "toothless tiger" is that the AG refuses to enforce its decisions.

That is why Abercrombie can get away with thumbing his nose at the OIP- not because the legislature hasn't been clear enough, as Temple points out today in citing the 1989 conference committee report for the sunshine law, as the OIP did in it's arguments in CofK vs. OIP.

Seems that "The Raw Truth" is that OIP does have options- options that you can bet the always-reticent-to-act legislature will be sure to iterate next year when they consider the OIP's request for tooth sharpening.

FOURTH AND FORTY

FOURTH AND FORTY: The Office of Information Practices (OIP) has been taking it on the chin lately over what has been described ad nausium as their decision to "punt" to the courts on this issue of whether Governor Neil Abercrombie had to reveal the full list of his judicial nominees after he made the appointment.

For those who haven't been following the story Abercrombie's predecessors routinely released the list but he claims that doing so would result in attorneys' reluctance to apply, should their law firms or clients find out.

The story has been reported and analyzed in the mainstream and alternative press as well as blogs- both mainstream and alternative- culminating with a Honolulu Star Advertiser editorial today and all have one thing in common- they routinely miss the point in criticizing the OIP for not opining on the matter since, they say, the law appears to require them to do so.

Typical of the criticisms is today's post by S-A columnist/blogger Dave Shapiro who, in telling the saga thus far, writes:

The saga of Gov. Neil Abercrombie’s secrecy on the names of judicial candidates has taken a troubling new turn with his hand-picked director of the Office of Information Practices, Cheryl Kakazu Park, refusing to issue an opinion on whether state law allows the governor to keep secret the nominees given him by the Judicial Selection Commission.

Park said it’s a waste of time for OIP to become further involved because Abercrombie has said he’ll ignore any OIP opinion against him unless a court tells him he must abide.

Park’s “punt,” as one news story described it, isn’t surprising; her predecessor, Cathy Takase, was fired after ruling against Abercrombie with a letter reiterating a 2003 OIP ruling that the names must be released.

The troubling part is that the governor now has not only shut the public out of the process of selecting judges who wield great power over our lives, but has politicized the OIP in an unprecedented way that diminishes its credibility and relevance.

And the law seems to be clear as is set out in this passage from blogger Ian Lind's post on the subject:

In Section 92F-42, which sets out the powers and responsibilities of OIP, this is right there at the top of the list. Responsibility #1.

The director of the office of information practices: (1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency’s granting of access;

I added the bold type on the word “shall.” OIP shall rule on an agency’s denial of access. It doesn’t use the word “may,” which would have given OIP discretion on whether to issue a ruling. It doesn’t say that OIP shall rule except when it looks futile because an agency stubbornly insists that it has the right to do whatever it wants. It says, simply, OIP shall do this job. It’s #1 responsibility. Top of the list, top line priority.

Someone needs to go back to OIP and ask what legal authority they have to “punt” in this case, given what appears to be clear statutory language (emphasis Ian's).


The problem is that each and every one who has written on the subject has either failed to read or comprehend the operative sentence in the letter from Park:

Toward the end of her memo she simply writes that:

since the Hawaii Supreme Court's (ruling) in County of Kaua`i vs Office of Information Practices OIP has been issuing advisory opinions rather than determinations.

For those for whom the case doesn't ring a bell it revolves around the infamous Kaua`i County

Council executive session- ES 177- the tentacles of which not only chimed over and over in Kaua`i Police Deportment politics for years but was one of the major highlights of the tale told in the book KPD Blue (see right rail).

At the secret conclave, then and now-again Councilmember Mel Rapozo, who was present at the infamous lap dance party at KPD headquarters and lost his cop job because of it- went off on KPD personnel blasting Chief KC Lum and others in the department according to an OIP memo observed but not copied by PNN at the time.

After an "on camera" examination the OIP ordered the minutes of the meeting to be released but the county, in the person of County Clerk Peter Nakamura, acting on the orders of then Council Chair Kaipo Asing, refused and decided to sue in circuit court.

The problem, as far as the OIP was concerned, was that the OIP was set up, in part, just to avoid these kinds of inter-agency lawsuits and then Director Les Kondo fought the case tooth and nail to avoid having the OIP become a "toothless tiger".

He argued that the provision allowing parties aggrieved by the OIP to sue in circuit court was to provide due process to individuals who were denied access to records, not for agencies told to "give 'em up" to sue the OIP. And he presented not just the specific wording of the law but the legislative committee reports- which clearly stated stated as much- as evidence.

But, to perhaps over simplify, the Supreme Court (SC) didn't listen or didn't care what Kondo foresaw happening to the OIP.

They essentially ruled that the county was entitled to access to the courts if due process was to be served. They also ruled, somewhat bizarrely, that although the request was for the minutes of ES-177- a "record request" over which the law clearly gave OIP authority in HRS 92F- it was actually a suit regarding a meeting, which falls the Sunshine Law (HRS 92) where the OIP did not have the "final bite of the apple" authority.

That essentially meant ithat Kondo's argument was deemed irrelevant.

And now the chickens have come home to roost.

In dealing with the ruling the OIP has simply stopped handing down binding opinions as the law calls for and now simply issues "advisory opinions", all of which can be appealed to the circuit court by anyone, as the SC precedent said.

Kondo was almost apoplectic over what he saw as the end of the OIP and of course he was right. But the Hawai`i press still doesn’t get it.

The SC opinion is not entirely clear as to whether the case was decided on the minutes vs open meeting matter or the lack of due process, the latter seeming to be just to get around Kondo's argument and get to what they- and the C of K- saw as the meat of the issue at hand... the release of the ES-177 minutes.

The County may have won the case but people who value open government and records rue the day that the decision came down. And until our punditry class cuts through the clutter of the politics of the judicial appointment list case and recognize the roots of the OIP's action, we'll continue to be kept in the dark about the state of affairs in the OIP.

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.

BOOM

BOOM: What, other than explosive, can you call Joan Conrow’s report today on our very own Kaua`i Beer Summit, with four- count ‘em four- deputy county attorneys, cold pack in hand, showing up at Councilperson Dickie Chang’s home to put the thumb screws on him to vote for the vacation rentals bill tomorrow.

According to Conrow

Upon hearing reports that Deputy County Attorney Mike Dahelig had called Councilman Dickie Chang at home one evening and asked if he wanted to have a beer, then showed up with a cold pack, followed thereafter by the separate arrivals of Deputy County Attorney Ian Jung and County Attorney Al Castillo and a discussion of the pending transient vacation rental bill, in which Dickie reportedly was told it was his duty to pass the measure because otherwise the county would be sued, I called Mike late yesterday afternoon and asked if it was typical for county attorneys to meet with Councilmembers at their homes and have conversations about bills before the Council.

But Joan didn’t leave it there and if that wasn’t disturbing- and potentially illegal and certainly of questionable ethics- enough she called Dahelig and he had some outrageous and memorable things to say about the clandestine confab outside of the council chambers where the council’s consultations with attorneys are supposed to take place.

“You are not the first person to make that inquiry of our office today,” Mike said. “What we did was not illegal. We’re the attorneys for all the Council members. And it’s like any other attorney and client. If they wish to talk with us, we are not going to dictate the venue they choose; we are not going to discern where the locale is. Our office does not engage in direct lobbying, but if there are legal concerns, we will discuss those matters with them.”

“But I heard that you called Dickie,” I said. “He didn’t call you.”

“We may even ask to sit down with Council members if we feel there is some confusion about the issue raised about them on the [Council] floor,” Mike said. “We’re going to advise and counsel, but never take any type of action to tell them how to vote. If we feel that there is some issues being raised that are not on point, we will raise issues with them. We do not go and say actually you have to vote a certain way.

Well that certainly is a strange interpretation of their job, especially considering that it’s been a rule of the council that the county attorney’s office does not represent individual councilpersons but the council as a whole- a rule used in order to squelch individual councilmembers' ability to divulge county attorney opinions without the approval of the whole body among other things.

We’ve talked to councilmembers who were denied access to county attorney advice and told to bring it up in executive session where the whole council could share in the answer.

But Conrow’s report wasn’t without a little hilarity. She asked Dahelig

“What about the beer?” I asked. “Is that just a guy thing, or what’s up with that?”

“Beer is not a substance that we’re not allowed to engage in,” Mike said. “In terms of what beverages we’re drinking, that’s not our job to be in a position to describe the circumstances of the meeting. As far as alcohol consumption, I can’t find anywhere that says it’s illegal.”

Somehow the tortured language of the reply reminds us of the famous Churchill quote saying “that is something up with which I shall not put”.

But back to the illegality. Joan said:

“Did you talk to any other Councilmembers?” I asked

"I’m not going to answer that, and I’m not going to discuss the nature of the conversation,” he said. “That’s privileged information [under attorney-client privilege].”

Here we go again. If indeed they had done the same thing with only one other councilperson it might not violate the sunshine law. But if a total of three were similarly consulted outside the confines of a duly agendaed or otherwise legally called executive session it would apparently violate the serial consultations provisions which forbid three or more councilmembers from deliberating toward a decision and especially discussing how they would vote and forbids using others to accomplish the same banned communications.

But the use of “attorney client privilege” when it comes to the open meetings provisions of the sunshine law was the subject of the infamous ES 177 case which we’re certainly not going to rehash here except to say the county won and now the Office Of Information Practices (OIP) is reluctant to challenge the council when attorney client privilege is concerned.

It may all hit the fan- although we wouldn’t be surprised to see it be either swept under the rug on Wednesday or if it does come up taken into executive session- at tomorrow’s meeting because, in the comments section of Joan’s article, former Councilperson and current council candidate Mel Rapozo wrote:

I have submitted a written request, through Council Chair Asing, that the Council defer this matter until these allegations can be investigated by an outside agency. This is a serious matter that should not be taken lightly. The County Attorney has a duty to represent all departments of the County, and should not be "taking sides" of either the Executive or Legislative branches of government.

There are certainly other issues here especially since the council as a whole is the client, not Chang. But as we’ve said the reign of current county Attorney Al Castillo continues to be punctuated with questionable ethics and a need to influence legislation in a manner that is way outside the bounds of the “powers, duties, privileges and liabilities” of the office of the county attorney.

(PNN) COUNCIL IGNORES, FLOUTS OIP IN CONFIRMING BOARD, COMMISSION MEMBERS

COUNCIL IGNORES, FLOUTS OIP IN CONFIRMING BOARD, COMMISSION MEMBERS

(PNN) -- To the surprise of few if any, the Kaua`i County Council ignored state law and two Office of Information Practices (OIP) directives in refusing to provide the public with certain information contained in the applications of some 21 nominees for positions on Board and Commissions (B&C) before confirming most of them at Wednesday’s council meeting.

The confirmations came despite the detailed testimony from good governance activist Rob Abrew- posted Wednesday in this space- documenting how OIP had twice explained the importance of the public interest (over privacy concerns) in receiving the information contained in the applications of prospective B&C members before they are confirmed.

After consulting with the county attorney during a recess, Councilperson Lani Kawahara promised to send a communication to the Office of B&C (OBC) asking them to look into the matter, But according to Abrew if and when the information is made available it will be “too late” to be useful in testifying about specific applicants.

Abrew and council watcher Glenn Mickens both told PNN that during a recess in the meeting Councilperson Jay Furfaro told them that the council need not follow OIP directions because “the OIP can be wrong” as evidenced by the council winning their lawsuit against the county over the ES (executive session) 177 case.

The county’s recent victory in the “ES-177” lawsuit was related to OIP’s authority over open meetings or “sunshine law" (HRS 92 section I) matters, not the open records or the Uniform Information Practices Act (UIPA HRS 92F) matters where the law is specific in granting the OIP the authority to decide which should prevail privacy vs. pubic interest matters.

The OIP sought to define the ES-177 dispute as a matter of UIPA law because it involved the release of executive session minutes, a “record”. But the Hawai`i Supreme Count ruled that it was an open meetings matter, because it was related to an open meeting issue.

The OIP has said that because of the ruling it will no longer release “formal opinions” on sunshine issues but will continue in it’s role in determining UIPA matters

The applications were made available to the council but were not released to the public with councilmembers contending that it was a matter for the OBC to decide even though the OIP specifically instructed the council itself to release the material.

According to Abrew’s testimony:

In an Letter dated January 1, 2005 addressed to Former Council Member JoAnn Yukimura concerning Executive Session Interviews, the issue of public disclosure of a successful applicant's information was discussed at great length. This letter was responsible for the interviews of the successful applicant's moving from Executive Session to a Public Meeting.

This Letter was also copied and sent to Chair Asing, Former County Attorney Nakazawa and County Clerk Peter Nakamura

It stated:

The Charter provides that all members of boards and commissions shall be appointed and may be removed by the mayor, with the approval of the council.” Charter, Art. XXIII, § 23.02. It is our understanding that, in accordance with the Charter, the Mayor transmits to the Council the names of the appointees for the Council’s approval. A copy of each appointee’s application for appointment to the board or commission is also transmitted to the Council. The application includes, among other things, the appointee’s name and employer, a summary of the appointee’s major work experience, and a statement of the applicant’s understanding of the primary duties of the appointment.

Although the UIPA recognizes that individuals have a significant privacy interest in “applications” and “nominations” for “appointment to a governmental position,” the OIP has previously opined that this significant privacy interest is outweighed by the public interest in the application information concerning successful applicants, or nominees, because it “sheds light upon the composition, conduct, and potential conflicts of interest of government board and commission members.” OIP Op. Ltr. No. 91-8 (June 24, 1991). Therefore, the UIPA would require the disclosure of the appointees’ application information.

The resolutions to confirm a handful of the applicants was deferred pending a rescheduling of their missed interviews but there is no indication whether the information in their applications would be forthcoming.

PREROGATIVE BY PAVLOV

PREROGATIVE BY PAVLOV: The Hawai`i Supreme Court’s recent refusal to overturn 5th Circuit Judge Kathleen Watenabe’s “irretrievably intertwined” ruling specifically dealing with the Kaua`i County Council’s Executive Session (ES) 177 was, though disappointing for both open governance advocates and the Office of Information Practices (OIP), not surprising given the deference given to lower court decisions.

But after reading a letter to the editor from former 5th circuit Judge Alfred “let ’em go” Laureta, it’s more apparent then ever that Kaua`i judges give the same or greater deference to the machinations of local administrative and legislative operatives, no matter how bizarre or even corrupt.

Laureta’s un-blanching support of the council- even to the point of misrepresenting the suit’s derivation- isn’t that different from the actual ruling in it’s use of overgeneralization and even misrepresentation.

He writes:

The council had been criticized for its perceived lack of complete transparency by some members of the council and criticized as well by members of the public for expending taxpayer funds to legally defend its position on the issue...

Disclosure of the minutes as demanded would be equivalent to the elimination of the need for executive sessions. All council deliberations will be open to the public. Discussions involving the legal rights of the county — to sue or not to sue, to settle or not to settle, how much to pay or not to pay, legal strategies, etc. With the public being privy to all this, expediency of council action will be highly questionable.
But of course the reality is that there’s no one who doesn’t recognize the need to executive sessions for matters under litigation, settlement conferences and other similar circumstances.

What people object to is the use of one specific exemption under HRS 95-5(a)4 that is used and abused to discuss and “deliberate toward a decision” on public policy matters and pending legislation under the guise of “consult(ing) with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.

But while Laureta- whose middle moniker came from his penchant for releasing dangerous criminals due to local family connections- and his deference to allowing “any kine” from his cronies in local government rose from the close knit plantation connections prevalent in government in his day, in some ways little has changed... especially when it comes to appointing local judges.

It has become more and more apparent that going to current 5th Circuit Judges Watenabe and Randall Valenciano for enforcement of the constitutional and state legislative restrictions on government is an exercise in futility most likely because that’s the arena in which they were engaged prior to appointment to the bench.

Watenabe, a former county attorney and career-long government lawyer and Valenciano, a former councilperson, naturally have a bias toward the case presented by their former colleagues unlike in other jurisdiction where appointments are often made from among those with either a private criminal and/or civil background or the prosecutorial realm.

Anyone who thinks that the courts have progressed since Laureta’s days and perhaps they will enforce the charter’s ethics provisions in sections 20.02(D) plain language prohibition on “(a)ppear(ing) in behalf of private interests before any county board, commission or agency” ought to look long and hard at whether they can get a fair and unbiased hearing before either of the Kaua`i circuit court judges.

(PNN) HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE

HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE:

(PNN) -- In a stunning rebuke to the authority and power of the Office Of Information Practices (OIP) the Hawai`i State Supreme Court, without comment, upheld the intermediate court of appeals denial of OIP’s ordered release of the infamous minutes of the “ES-177” Kauai County Council meeting held in January of 2006.

The Monday decision upholds the original ruling of fifth circuit court Judge Kathleen Watanabe that the attorney-client protected material in the minutes is “irretrievably intertwined” with the material that the OIP ordered released to the public.

More importantly it also sets a precedent upholding the notion that individual agencies may now sue in circuit court to overturn OIP rulings despite apparent legislative intent and construction that allowed OIP to have “final say” on matters involving the state sunshine (open meetings- HRS 92-section 1) and Uniform Information Practices Act or UIPA (open records- HRS 92F) laws

The executive session was called to purportedly allow the council to discuss a council investigation of the Kaua`i Police Department (KPD) but the minutes were believed to contain a wide ranging discussion of specific charges against KPD personnel by former police officer and then council member Mel Rapozo according to OIP letters to the county attorney that were released to the public at the time.

For a detailed analysis of and links to the OIP brief see our July 1 post or click here to listen to the entire audio recording of the audio arguments or here to read the background at the state judiciary web site.

The following is the full text of Monday’s ruling:

ORDER AFFIRMING JUDGMENT ON APPEAL

(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Hare, in place of Recktenwald, J., recused)

Petitioners/Defendants-Appellants Office of Information Practices filed a timely application for a writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA) dated February 19, 2009, entered pursuant to the publishedopinion dated January 30, 2009 in County of Kauai v. Office of Information Practices, 120 Hawaii 34, 200 P.3d 403 (App. 2009) which affirmed the February 11, 2008 judgment of the circuit court of the fifth Circuit. This court accepted certiorari on June 23, 2009, and subsequently ordered oral argument.

Upon careful review of the record and the briefs submitted by the parties, having given due consideration to the arguments advanced and the issues raised, and also having heard and carefully considered the parties' respective arguments at oral argument held on August 10, 2009,

IT IS HEREBY ORDERED that the ICA's February 19, 2009 judgment on appeal is affirmed.

DATED: Honolulu, Hawai`i, October 26, 2009.

(Sent to attorneys) Paul T. Tsukiyama, Cathy L. Takase, and Jennifer Z. Brooks, (of Office of Information Practices) , and Gail Y. Cosgrove and Kunio Kuwabe (of Hisaka Yoshida & Cosgrove) for petitioners/defendants/­appellants

Alfred B. Castillo (of Office of the County Attorney, County of Kauai) David J. Minkin and Becky T. Chestnut (of McCorriston Miller Mukai MacKinnon LLP) for respondents/plaintiffs ­appellees.

ALL EARS

ALL EARS: The case of the release of the minutes of the infamous ES 177 Kauai County Council meeting was heard by the Supreme Court of Hawai`i on August 10. We’re still looking for the transcript but for your weekend listening pleasure you may now listen to the entire audio recording in mp3 format.

The ruling is apparently still pending.

For a detailed analysis of and links to the OIP brief see our July 1 post.

Here’s some background from the state judicary web site.

ORAL ARGUMENTS BEFORE THE SUPREME COURT
NO. 29059 - Monday, August 10, 2009 - 11 a.m.

COUNTY OF KAUAI, KAUAI COUNTY COUNCIL; BILL "KAIPO" ASING, JAMES KUNANE TOKIOKA, JAY FURFARO, SHAYLENE ISERI-CARVALHO, DARYL W. KANESHIRO, MEL RAPOZO, JOANN A. YUKIMURA, and PETER A. NAKAMURA, in their official capacities, Plaintiffs-Appellees,

vs.

OFFICE OF INFORMATION PRACTICES, STATE OF HAWAII; and the Director of the Office of Information Practices, in his official capacity, Defendants-Appellants.(Declaratory Judgment)

Attorney(s) for Petitioners-Defendants-Appellant(s)Paul T. Tsukiyama, Cathy L. Takase and Jennifer Z. Brooks, Office of Information Practices, and Gail Y. Cosgrove and Kunio Kuwabe (Hisaka Yoshida & Cosgrove)

Attorney(s) for Respondents-Plaintiffs-Appellee(s)Honorable Matthew S. K. Pyun, Jr., County Attorney, County of Kauai, and David J. Minkin and Becky T. Chestnut (McCorristion Miller Mukai MacKinnon)

NOTE: Certificate of Recusal by Justice Mark E. Recktenwald, filed 5/15/09.

NOTE: Order assigning Judge Glenn Hara in place of Recktenwald, recused, filed 5/18/09.

NOTE: Oral argument rescheduled from 10:00 a.m. to 11:00 a.m.

COURT: RTYM, CJ; PAN, SRA & JED, JJ, and Circuit Judge Glenn Hara in place of Recktenwald, recused.

Brief description:
Petitioners/Defendants-Appellants Office of Information Practices, State of Hawai`i (OIP) and the Director of OIP, in his official capacity (collectively “OIP”) filed an application for writ of certiorari seeking review of the Intermediate Court of Appeals’ (ICA’s) February 19, 2009 judgment on appeal in support of its January 30, 2009 opinion. The ICA’s opinion affirmed the Circuit Court of the Fifth Circuit’s grant of summary judgment in favor of Respondents-Plaintiffs-Appellees County of Kaua`i, Kaua`i County Council, and Bill “Kaipo” Asing, James Kunane Tokioka, Jay Furfaro, Shaylene Iseri-Carvalho, Daryl W. Kaneshiro, Mel Rapozo, Joann A. Yukimura, and Peter A. Nakamura in their official capacities (collectively “the County”) and ordered that the minutes from a meeting conducted by the Kaua`i County Council on January 20, 2005, identified as Executive Session 177 (ES-177), shall not be disclosed. In its application for writ of certiorari before this court, OIP asserts that the ICA gravely erred in (1) affirming the circuit court’s jurisdiction to hear the Council’s original action under the Sunshine Law, Hawai`i Revised Statutes (HRS) chapter 92, without then limiting its review to determining the applicability of that chapter; (2) not giving effect to the Kauai County Charter’s more restrictive standard for closing a counsel meeting; (3) failing to consider the legislative history indicating that the Legislature intentionally narrowed the attorney-client executive meeting purpose provided by HRS § 92-5(a)(4); and (4) failing to defer to OIP’s interpretation of Sunshine Law provisions under the palpably erroneous standard.