EVERYBODY’S LAUGHING, EVERYBODY’S HAPPY: County Attorney (CA) Al “The Nebbish” Castillo surprised a select few with his apparent agreement with the ACLU- Hawai`i opinion about illegality of the Prosecutor Shaylene Iseri-Carvalho/KPD/anti-drug office-sponsored, anti-marijuana rally last week.
Others suspect though that perhaps his opinion had less to do with the issue at hand than it did with the long standing feud between Castillo and Iseri ever since both took office over two years ago. The infamous game of musical chairs at the time has left the county with a bunch of ex-prosecutors in the CA’s office and vice versa which may be why Castillo took the opportunity to stick it to Iseri.
But at the same council meeting where Iseri and Councilmember Mel Rapozo held their “Reefer Madness” cotillion, Castillo was busy doing his best Louis Quarorze impression, once again interrupting the council to remind them who, in reality, L'Etat c'est.
The issue at hand was a complicated one that has been doggedly pursued by activist Horace Stoessel even since January’s inaugural meeting fiasco over the evaluations of appointed officials, including the county clerk.
Stoessel has become a resource extraordinaire on the subject for the council, having sat on the Salary Commission and after spending years to emerge as an expert on the subject- as well as others- as it relates to the county charter.
So after Stoessel’s “three minutes times two” were up the council had many questions and was trying to ascertain his opinion on who should be responsible for writing into law the process for evaluations.
It’s all very esoteric but suffice it to say that it had gone on for quite a while when, like a petulant child piping up during a “grown-up conversation” Castillo couldn’t take it any more.
His first interruption was, as if they needed it, to “direct” the council to “stop”, saying Stoessel was well past his three minutes and was- gasp - actually engaging with them during deliberations- something former Chair Kaipo Asing invented and then promptly banned in order to take the public out of the public participatory process.
He was pretty much ignored and the council was finally getting to the nitty gritty of whether the council actually had the authority to dictate a system for evaluating administration appointees when Councilmember JoAnn Yukimura asked if she had properly understood Stoessel’s “legal conclusion” on a fine point.
That was just too much for Castillo who loudly protested that a “legal conclusion by anyone but the county attorney is irrelevant” and that it was “really improper” for Stoessel to reflect back on his time with the salary commission.
As Castillo spoke, the camera showed a clearly agitated Yukimura, rolling her eyes and shaking her head in disbelief. Then Council Chair Jay Furfaro tried to calm things reminding Castillo that he, Furfaro, was the chair and was “acting like any good manager,” likening it to seeking input from a valued employee whose knowledge and experience was essential to the conversation.
That brought back some decorum and discussion continued with a clearly agitated Castillo keeping his peace. But when it became apparent that the council was going to take Stoessel’s testimony to heart, the Sun King couldn’t control himself any more screeching out “I am the County Attorney” and then blathering on about how he should be consulted and boo-hoo-hoo and blah-blah-blah.
So tune in again next week folks for the comedic stylings of Iseri and Castillo and their ensemble of rotating attorneys. You can’t go wrong and well, the price is right... if you ignore the fact that your taxes paying for it.
Showing posts with label Horace Stoessel. Show all posts
Showing posts with label Horace Stoessel. Show all posts
Thursday, February 24, 2011
Monday, November 29, 2010
G-MEN AND THE TWO C-MEN
G-MEN AND THE TWO C-MEN: The sudden resignation of Planning Director Ian Costa was apparently forced due to a current FBI investigation of the Kaua`i Planning Department focusing on Costa and his Deputy Imai Aiu.
According to an extremely reliable source close to the investigation, the bureau has been focusing on the planning department in recent weeks. This was also confirmed by a second source independent of the first one.
Anyone who watched the planning commission meeting last Tuesday couldn’t help but be convinced that Costa didn’t simply resign- the measured hesitating speeches, the down-looking faces, the references to a “sad day”, the reassurances by Mayor Bernard Carvalho that “no matter what” there would be “good days ahead for Costa”, even comments from commission members referring to “the situation we’re in” and “the steps we’ve taken.”
Prior to Costa’s “resignation”, at their October 26 meeting the planning commission held an executive session “to discuss matters pertaining to the Planning Director and, if necessary, to consult with the County’s legal counsel... pertain(ing) to the evaluation of the Planning Director.”
The investigation may be related to the cases upon which we reported recently that were brought before the Kaua`i Board of Ethics (BOE).
They involved the practice of department employees of taking outside work that came back to the department for approval. And it wasn’t limited to underlings but extended to Costa himself who was reportedly the subject of a complaint that he did architectural work on projects his department later approved.
Not only is this kind of thing a violation of the local Code of Ethics, if the FBI finds that there was say, a link between their work and the approvals or that the amount of work was not really commensurate with the amount they were paid or even that a kickback scheme existed, indictments could be ahead... not just for the actions themselves but under conspiracy and racketeering laws if it were found to be pervasive in the department.
But aside from the inherent nature of Carvalho’s “ode to cronyism” speech to the commission- in which he pledged to give Costa another job because their “relationship goes back to ‘hanabata’ days” and talked of how “it’s all about the relationships,” his attempt to use his “ex-officio” membership on the planning commission to promote and lobby for Deputy County Attorney Michael Dahilig as interim planning director is a huge ethics violation in and of itself.
Ethics and Sunshine watchdog Rob Abrew made it plain in his testimony before the commission.
The Kaua`i County Charter makes the mayor an “ex-officio”, non-voting member of every county board and commission. And as a member of a board or commission- which is the capacity in which Carvalho wrote he was acting in his letter to the commission- one is not permitted to lobby for a vote except during a duly agendaed and called-to-order meeting. To do so beforehand- and to make sure, as Carvalho did, that everyone saw it when it was printed on the front page of the local newspaper - is a blatant violation of HRS 92.
But that isn’t the worst ethics violation inherent in Carvalho’s request.
Most remember the case of former Police Commissioner Michael Ching who was accused of using his position on the commission to lobby for the hiring of K.C. Lum as police chief.
And although the decision was tainted by a series of manipulations by the BOE and county council to get the result they wanted, that kind of action was found to be a violation of the code of ethics which prohibits the use of one’s position to seek a special favor or benefit for another.
Ching was forced to resign and Lum’s contract was nullified.
How that case differs from the case of Planning Commission “member” Carvalho lobbying for the appointment of Dahilig as interim planning director is anything but apparent.
While details of the FBI investigation are not available just yet, it is known that they have been looking into the possibility of corruption in Kaua`i county government since the end of the Baptiste administration, as revealed by then Councilperson now Prosecutor Shaylene Iseri-Carvalho in an open council session.
She and others in county government revealed that they had been grilled- often for hours at a time- by FBI officials who then opened an office on the island for the first time.
There’s one more interesting note on Costa’s appointment by Carvalho to the post of deputy director of parks and recreation.
Back in the late 90’s then Mayor Maryanne Kusaka attempted to appoint the deputy director of the planning department, even though the county charter specifically calls for the appointment of a department directors who are then to hire and fire his or her own staff.
Then County Attorney Hartwell Blake, in a bizarre opinion, told Kusaka that it was all legal for her to hire the deputy.
That outraged another ethics and sunshine activist, Horace Stoessel, who waged a years-long battle to have the opinion reversed. When Baptiste was elected the first action of his new County Attorney, Lani Nakazawa, was to reverse the opinion.
The Nakazawa opinion stands to this day and would ban Carvalho from hiring a deputy director of parks and recreation.
Of course the Director of Parks and Recreation is one of Carvalho’s closest cronies, his former campaign director Lenny Rapozo so the actual appointment of Costa may be moot. But once again using one's position to secure a special favor or benefit for another- something Carvalho didn’t mince words in admitting he was doing in his testimony before the planning commission- is a violation of the county charter, section 20.02(E).
According to an extremely reliable source close to the investigation, the bureau has been focusing on the planning department in recent weeks. This was also confirmed by a second source independent of the first one.
Anyone who watched the planning commission meeting last Tuesday couldn’t help but be convinced that Costa didn’t simply resign- the measured hesitating speeches, the down-looking faces, the references to a “sad day”, the reassurances by Mayor Bernard Carvalho that “no matter what” there would be “good days ahead for Costa”, even comments from commission members referring to “the situation we’re in” and “the steps we’ve taken.”
Prior to Costa’s “resignation”, at their October 26 meeting the planning commission held an executive session “to discuss matters pertaining to the Planning Director and, if necessary, to consult with the County’s legal counsel... pertain(ing) to the evaluation of the Planning Director.”
The investigation may be related to the cases upon which we reported recently that were brought before the Kaua`i Board of Ethics (BOE).
They involved the practice of department employees of taking outside work that came back to the department for approval. And it wasn’t limited to underlings but extended to Costa himself who was reportedly the subject of a complaint that he did architectural work on projects his department later approved.
Not only is this kind of thing a violation of the local Code of Ethics, if the FBI finds that there was say, a link between their work and the approvals or that the amount of work was not really commensurate with the amount they were paid or even that a kickback scheme existed, indictments could be ahead... not just for the actions themselves but under conspiracy and racketeering laws if it were found to be pervasive in the department.
But aside from the inherent nature of Carvalho’s “ode to cronyism” speech to the commission- in which he pledged to give Costa another job because their “relationship goes back to ‘hanabata’ days” and talked of how “it’s all about the relationships,” his attempt to use his “ex-officio” membership on the planning commission to promote and lobby for Deputy County Attorney Michael Dahilig as interim planning director is a huge ethics violation in and of itself.
Ethics and Sunshine watchdog Rob Abrew made it plain in his testimony before the commission.
The Kaua`i County Charter makes the mayor an “ex-officio”, non-voting member of every county board and commission. And as a member of a board or commission- which is the capacity in which Carvalho wrote he was acting in his letter to the commission- one is not permitted to lobby for a vote except during a duly agendaed and called-to-order meeting. To do so beforehand- and to make sure, as Carvalho did, that everyone saw it when it was printed on the front page of the local newspaper - is a blatant violation of HRS 92.
But that isn’t the worst ethics violation inherent in Carvalho’s request.
Most remember the case of former Police Commissioner Michael Ching who was accused of using his position on the commission to lobby for the hiring of K.C. Lum as police chief.
And although the decision was tainted by a series of manipulations by the BOE and county council to get the result they wanted, that kind of action was found to be a violation of the code of ethics which prohibits the use of one’s position to seek a special favor or benefit for another.
Ching was forced to resign and Lum’s contract was nullified.
How that case differs from the case of Planning Commission “member” Carvalho lobbying for the appointment of Dahilig as interim planning director is anything but apparent.
While details of the FBI investigation are not available just yet, it is known that they have been looking into the possibility of corruption in Kaua`i county government since the end of the Baptiste administration, as revealed by then Councilperson now Prosecutor Shaylene Iseri-Carvalho in an open council session.
She and others in county government revealed that they had been grilled- often for hours at a time- by FBI officials who then opened an office on the island for the first time.
There’s one more interesting note on Costa’s appointment by Carvalho to the post of deputy director of parks and recreation.
Back in the late 90’s then Mayor Maryanne Kusaka attempted to appoint the deputy director of the planning department, even though the county charter specifically calls for the appointment of a department directors who are then to hire and fire his or her own staff.
Then County Attorney Hartwell Blake, in a bizarre opinion, told Kusaka that it was all legal for her to hire the deputy.
That outraged another ethics and sunshine activist, Horace Stoessel, who waged a years-long battle to have the opinion reversed. When Baptiste was elected the first action of his new County Attorney, Lani Nakazawa, was to reverse the opinion.
The Nakazawa opinion stands to this day and would ban Carvalho from hiring a deputy director of parks and recreation.
Of course the Director of Parks and Recreation is one of Carvalho’s closest cronies, his former campaign director Lenny Rapozo so the actual appointment of Costa may be moot. But once again using one's position to secure a special favor or benefit for another- something Carvalho didn’t mince words in admitting he was doing in his testimony before the planning commission- is a violation of the county charter, section 20.02(E).
Thursday, September 23, 2010
NEW BLOOD ON THE TRACKS
NEW BLOOD ON THE TRACKS: Today’s announcement that two- count ‘em two- actual college graduates with journalism degrees have been employed by the local newspaper comes as a shocking yet pleasant surprise... sort of.
While it’s nice to see real journalists hired- Vanessa Van Voorhis covering “business” and Andrea Frainier, “lifestyle”- it doesn’t change the fact that the more newsy government and police reporters are a little- or maybe a lot- less professional, although the government reporter Leo Azambuja has shown some improvement.
Though unfortunately that hasn’t led him to obtain the kind of expertise possessed his predecessor Mike Levine- no shame there- we still sometimes wonder whether he’s even trying.
In all fairness his editor Nathan Eagle could have made sure coverage of the ethically-challenged and oft incompetent Board Of Ethics (BOE) continued when Levine left for big city climes. But apparently neither Eagle nor Azambuja seem interested in covering BOE meetings and more importantly continuing Levine’s quest for BOE documents beyond replacing Levine’s name with Azambuja’s at their document-containing “Sunshine” web page.
But lucky live Kaua`i and not Bell California where the lack of citizen oversight led to obscene salaries for county officials.
Next time you see the trolls start criticizing our “nitpickers” remember that the only news we’ve been getting about the BOE lately has come from Horace Stoessel whose latest report on the BOE’s September 17 meeting- in the form of an as yet unpublished letter to the editor- describes the latest round of fear and loathing.
Here’s Horace’s report- see ya on the other side.
CREDIT WHERE CREDIT IS DUE
In May Deputy County Attorney Mona Clark advised the Board of Ethics that County Code Section 3-1.7(d) absolutely prohibits the kinds of outside employment referenced in requests for advisory opinions involving four members of the Planning Department.
At its meeting on September 17 the Board reviewed a written opinion from Attorney Clark repeating and expanding the advice she gave in May and concluding: “It is the County Attorney’s opinion that an employee cannot create a work product for a private employer which the employee would reasonably expect the employer to submit to the Planning Department without a violation of K.C.C. 3-1.7 occurring.”
The Board acted accordingly and continued to set an example for other agencies by releasing the privileged opinion, which is available from the Office of Boards and Commissions.
I wish I could say that the quality of the May-to-September process leading to the Board’s decision matched the quality of the decision itself and the principled advice it was based on. However, the process left a trail of unanswered questions.
In light of the Charter requirement that a request for advisory opinion must be answered within thirty days, I think the most obvious question is, why did it take so long for the Board to answer this request, especially when its answer was based on the same advice it received on day one?
A short letter like this cannot do justice to the question. Suffice to say that it leads to numerous other questions pertaining to policies (and lack of policies), procedures and communication (or lack of communication) involving the Mayor’s office and Planning, Personnel, and County Attorney offices as well as the Board of Ethics.
I do not question the motives or integrity of county employees. I do say that there is plenty of room for improving governmental processes. One way to improve the processes is for agencies and citizens to extend mutual respect to and expect mutual accountability from each other.
What Horace doesn’t mention here is that rather than doing their job in a timely manner the BOE’s notorious inability to read plain English has caused them to request that the charter commission- another body whose meetings have been unattended by local newspaper reporters since Levine left- submit a charter amendment to voters to give the BOE more time to futz around.
The announcement of this year’s charter amendments will be forthcoming presently but if this change, and one to allow the mayor to consolidate power by taking away the police, fire and planning commissions’ ability to hire and fire their respective department heads, are typical of their work this year an across the board “no” vote from the electorate would seem to be a no-brainer.
Whether the news that will allow people to make informed decisions on proposed charter changes will reach them through their “newspaper of record” is anyone’s guess.
But at least they’ll have timely and accurate information about who opened a new scissors and scotch tape store and whose baby lu`ua served the best malasadas in Waimea.
While it’s nice to see real journalists hired- Vanessa Van Voorhis covering “business” and Andrea Frainier, “lifestyle”- it doesn’t change the fact that the more newsy government and police reporters are a little- or maybe a lot- less professional, although the government reporter Leo Azambuja has shown some improvement.
Though unfortunately that hasn’t led him to obtain the kind of expertise possessed his predecessor Mike Levine- no shame there- we still sometimes wonder whether he’s even trying.
In all fairness his editor Nathan Eagle could have made sure coverage of the ethically-challenged and oft incompetent Board Of Ethics (BOE) continued when Levine left for big city climes. But apparently neither Eagle nor Azambuja seem interested in covering BOE meetings and more importantly continuing Levine’s quest for BOE documents beyond replacing Levine’s name with Azambuja’s at their document-containing “Sunshine” web page.
But lucky live Kaua`i and not Bell California where the lack of citizen oversight led to obscene salaries for county officials.
Next time you see the trolls start criticizing our “nitpickers” remember that the only news we’ve been getting about the BOE lately has come from Horace Stoessel whose latest report on the BOE’s September 17 meeting- in the form of an as yet unpublished letter to the editor- describes the latest round of fear and loathing.
Here’s Horace’s report- see ya on the other side.
CREDIT WHERE CREDIT IS DUE
In May Deputy County Attorney Mona Clark advised the Board of Ethics that County Code Section 3-1.7(d) absolutely prohibits the kinds of outside employment referenced in requests for advisory opinions involving four members of the Planning Department.
At its meeting on September 17 the Board reviewed a written opinion from Attorney Clark repeating and expanding the advice she gave in May and concluding: “It is the County Attorney’s opinion that an employee cannot create a work product for a private employer which the employee would reasonably expect the employer to submit to the Planning Department without a violation of K.C.C. 3-1.7 occurring.”
The Board acted accordingly and continued to set an example for other agencies by releasing the privileged opinion, which is available from the Office of Boards and Commissions.
I wish I could say that the quality of the May-to-September process leading to the Board’s decision matched the quality of the decision itself and the principled advice it was based on. However, the process left a trail of unanswered questions.
In light of the Charter requirement that a request for advisory opinion must be answered within thirty days, I think the most obvious question is, why did it take so long for the Board to answer this request, especially when its answer was based on the same advice it received on day one?
A short letter like this cannot do justice to the question. Suffice to say that it leads to numerous other questions pertaining to policies (and lack of policies), procedures and communication (or lack of communication) involving the Mayor’s office and Planning, Personnel, and County Attorney offices as well as the Board of Ethics.
I do not question the motives or integrity of county employees. I do say that there is plenty of room for improving governmental processes. One way to improve the processes is for agencies and citizens to extend mutual respect to and expect mutual accountability from each other.
What Horace doesn’t mention here is that rather than doing their job in a timely manner the BOE’s notorious inability to read plain English has caused them to request that the charter commission- another body whose meetings have been unattended by local newspaper reporters since Levine left- submit a charter amendment to voters to give the BOE more time to futz around.
The announcement of this year’s charter amendments will be forthcoming presently but if this change, and one to allow the mayor to consolidate power by taking away the police, fire and planning commissions’ ability to hire and fire their respective department heads, are typical of their work this year an across the board “no” vote from the electorate would seem to be a no-brainer.
Whether the news that will allow people to make informed decisions on proposed charter changes will reach them through their “newspaper of record” is anyone’s guess.
But at least they’ll have timely and accurate information about who opened a new scissors and scotch tape store and whose baby lu`ua served the best malasadas in Waimea.
Wednesday, August 25, 2010
REPLY HAZY, TRY AGAIN
REPLY HAZY, TRY AGAIN: We haven’t heard much about our crony-addled, bored of ethics, Board of Ethics (BOE) since local newspaper reporter Mike Levine left for a real job in journalism.
Levine’s coverage during the infamous “20.02(D)” debacle (see right rail for our three-part report) would have been nothing extraordinary in the rest of country but around here- especially lately- merely attending meetings and reporting accurately IS extraordinary by any measure.
Nowadays if it weren’t for a few dedicated “nitpicking” community watchdogs that darkest of black holes for ethical violations might go it’s merry ethically-challenged way.
Some might think that the BOE’s inability to read and apply simple ethics laws could indicate a distinct lack of literacy. For those Pollyannas, well, we have a few select scenic lookouts for sale.
The reality is that after Mayor Bernard Carvalho’s unceremonious dumping of BOE member (and current county council candidate) Rolf Bieber it became quite obvious that if you’re going to wear the king’s uniform you’d better carry the king’s sword.
So when members of the planning department decided it was okay for them to seek outside employment preparing permit applications for their fellow department employees’ to approve, instead of trying to stop the plainly unethical practice that the law forbids, Planning Director Ian Costa knew he could turn to the BOE for a some kind of tortured process whereby his underlings could continue their corrupt practices.
Horace Stoessel has been doing the job the local newspaper abandoned after Levine’s departure and today, without further comment, we present his latest report.
-------
YOUR GOVERNMENT AT WORK
I have attended meetings of the Board of Ethics for the better part of three years. I offer these comments for the information of those interested in a matter currently before the Board.
In May Planning Director Ian Costa requested an advisory opinion from the Board of Ethics regarding the outside employment of four departmental employees engaged variously in drafting, site inspection, architectural drawings, design and consultation.
Since then, in an end run around the Charter requirement that a request for advisory opinion must be answered within 30 days, the request has been withdrawn twice by mutual agreement between the Board and the Department, in each case to be resubmitted at a later date. The main reason given for the five-months-and-counting process was to allow Director Costa a chance to consult the County Attorney ’s office.
So far the County Attorney ’s office has participated in the Board’s process as follows:
In May Deputy County Attorney Mona Clark, who is regularly assigned to the Board, advised the Board that County Code Section 3-1.7(d) expresses an absolute prohibition against the activities referenced in the request for advisory opinion and told the Board that aside from enforcing the section its only option is to ask the Council to change the language of 3-1.7. The Board took no action based on her advice, arranging instead with Director Costa to withdraw the request and resubmit it later.
In July Attorney Clark volunteered to provide the Board with a (written) opinion if the Board requested it. The Board did not request it.
In August Director Costa’s request reappeared on the agenda, leading some of us in the public to believe that the way was clear for the Board to act on the request. However, County Attorney Al Castillo appeared long enough to tell the Board that Attorney Clark was in court and to apologize for his being unprepared to address the agenda item.
In July Board member Paul Weil had moved that the Board request the County Attorney to provide the Board with the same information provided to Mr. Costa. The motion was seconded by Warren Perry and unanimously adopted. That request also went unanswered in August.
In August it was agreed that Mr. Costa would resubmit the department’s request at the September 17 meeting.
Levine’s coverage during the infamous “20.02(D)” debacle (see right rail for our three-part report) would have been nothing extraordinary in the rest of country but around here- especially lately- merely attending meetings and reporting accurately IS extraordinary by any measure.
Nowadays if it weren’t for a few dedicated “nitpicking” community watchdogs that darkest of black holes for ethical violations might go it’s merry ethically-challenged way.
Some might think that the BOE’s inability to read and apply simple ethics laws could indicate a distinct lack of literacy. For those Pollyannas, well, we have a few select scenic lookouts for sale.
The reality is that after Mayor Bernard Carvalho’s unceremonious dumping of BOE member (and current county council candidate) Rolf Bieber it became quite obvious that if you’re going to wear the king’s uniform you’d better carry the king’s sword.
So when members of the planning department decided it was okay for them to seek outside employment preparing permit applications for their fellow department employees’ to approve, instead of trying to stop the plainly unethical practice that the law forbids, Planning Director Ian Costa knew he could turn to the BOE for a some kind of tortured process whereby his underlings could continue their corrupt practices.
Horace Stoessel has been doing the job the local newspaper abandoned after Levine’s departure and today, without further comment, we present his latest report.
-------
YOUR GOVERNMENT AT WORK
I have attended meetings of the Board of Ethics for the better part of three years. I offer these comments for the information of those interested in a matter currently before the Board.
In May Planning Director Ian Costa requested an advisory opinion from the Board of Ethics regarding the outside employment of four departmental employees engaged variously in drafting, site inspection, architectural drawings, design and consultation.
Since then, in an end run around the Charter requirement that a request for advisory opinion must be answered within 30 days, the request has been withdrawn twice by mutual agreement between the Board and the Department, in each case to be resubmitted at a later date. The main reason given for the five-months-and-counting process was to allow Director Costa a chance to consult the County Attorney ’s office.
So far the County Attorney ’s office has participated in the Board’s process as follows:
In May Deputy County Attorney Mona Clark, who is regularly assigned to the Board, advised the Board that County Code Section 3-1.7(d) expresses an absolute prohibition against the activities referenced in the request for advisory opinion and told the Board that aside from enforcing the section its only option is to ask the Council to change the language of 3-1.7. The Board took no action based on her advice, arranging instead with Director Costa to withdraw the request and resubmit it later.
In July Attorney Clark volunteered to provide the Board with a (written) opinion if the Board requested it. The Board did not request it.
In August Director Costa’s request reappeared on the agenda, leading some of us in the public to believe that the way was clear for the Board to act on the request. However, County Attorney Al Castillo appeared long enough to tell the Board that Attorney Clark was in court and to apologize for his being unprepared to address the agenda item.
In July Board member Paul Weil had moved that the Board request the County Attorney to provide the Board with the same information provided to Mr. Costa. The motion was seconded by Warren Perry and unanimously adopted. That request also went unanswered in August.
In August it was agreed that Mr. Costa would resubmit the department’s request at the September 17 meeting.
Wednesday, March 31, 2010
STILL ON PATROL
STILL ON PATROL: The recent decision by the Kaua`i Board of Ethics (BOE) to enforce the conflict-of-interest prohibitions as expressed in the county charter’s section 20.02(D) was an important first step in reforming what has evolved into a traditionally ethically-challenged political tool of administrations and councils.
And apparently members of the public aren’t going to rest on their laurels if Horace Stoessel’s communication asking the BOE to “schedule three reviews that I believe will serve the public interest as well as the board’s interest, with a brief rationale for each” is any indication.
Although Stoessel’s requests are matters that the BOE needs to examine until they come under a less political and more independent template and appointment system - similar to that of the State Ethics commission- any reforms may be merely akin to shifting deck chairs on the Titanic until the charter review commission decides (or a group of citizens petitions) to deal with the really problematic charter sections like the one governing the BOE’s structure.
That said, here’s Horace’s request:
----------
TO: Chairperson Sally Motta and members of the Board of Ethics
FROM: Horace Stoessel
SUBJECT: Request for Reviews
DATE: March 30, 2010
The purpose of this communication is to ask the Board of Ethics to schedule three reviews that I believe will serve the public interest as well as the board’s interest, with a brief rationale for each.
1. A review of the board’s Guide to Ethical Issues (2004), with a view to making appropriate revisions. Aside from routine corrections such as recognizing the creation of the Office of Boards and Commissions Administrator, potentially confusing references to the Code of Ethics need correcting. In the last paragraph of page one, for example, the Code is referred to as “these ordinances,” while the examples listed on pages 4-8 routinely cite the County Code ahead of the Charter—a practice that should be reversed.
2. A review of Chapter 3 Article 1 of the County Code in light of Charter Section 20.04D, with a view to recommending changes per 20.05D(5). In 1971 the Council enacted Section 25, entitled “ETHICS,” consisting of slightly more than two double-spaced pages. In 1976 the section was replaced with approximately six single-spaced pages entitled “CODE OF ETHICS.” It is reasonable to assume that the new title and expanded contents made it easy for people to assume that Chapter 3 Article 1, rather than Charter Article XX, contains the code of ethics. The title of 3.1 should be changed to something like “Supplements to the Code of Ethics,” and the contents should be reviewed in light of the requirement that ordinances should be necessary supplements to the code. For example, is mere repetition of sections from Article XX justified by 20.04D?
3. A review of the relationship between the Board of Ethics and the administration in light of the board’s authority and responsibility per Article XX, the job description of the Boards and Commissions Administrator (Charter Section 7.06 adopted in 2006), and the County Attorney’s role (Charter Section 8.04). The board is not a part of the administration, but the fact that the Boards and Commissions Administrator and the County Attorney are appointed by the Mayor and serve the board can lead to the perception that the board is just another part of the administration. One key issue is whether the board has the right to seek outside counsel when it deems such counsel is needed.
I request that this communication be placed on the board’s April 9 agenda.
And apparently members of the public aren’t going to rest on their laurels if Horace Stoessel’s communication asking the BOE to “schedule three reviews that I believe will serve the public interest as well as the board’s interest, with a brief rationale for each” is any indication.
Although Stoessel’s requests are matters that the BOE needs to examine until they come under a less political and more independent template and appointment system - similar to that of the State Ethics commission- any reforms may be merely akin to shifting deck chairs on the Titanic until the charter review commission decides (or a group of citizens petitions) to deal with the really problematic charter sections like the one governing the BOE’s structure.
That said, here’s Horace’s request:
----------
TO: Chairperson Sally Motta and members of the Board of Ethics
FROM: Horace Stoessel
SUBJECT: Request for Reviews
DATE: March 30, 2010
The purpose of this communication is to ask the Board of Ethics to schedule three reviews that I believe will serve the public interest as well as the board’s interest, with a brief rationale for each.
1. A review of the board’s Guide to Ethical Issues (2004), with a view to making appropriate revisions. Aside from routine corrections such as recognizing the creation of the Office of Boards and Commissions Administrator, potentially confusing references to the Code of Ethics need correcting. In the last paragraph of page one, for example, the Code is referred to as “these ordinances,” while the examples listed on pages 4-8 routinely cite the County Code ahead of the Charter—a practice that should be reversed.
2. A review of Chapter 3 Article 1 of the County Code in light of Charter Section 20.04D, with a view to recommending changes per 20.05D(5). In 1971 the Council enacted Section 25, entitled “ETHICS,” consisting of slightly more than two double-spaced pages. In 1976 the section was replaced with approximately six single-spaced pages entitled “CODE OF ETHICS.” It is reasonable to assume that the new title and expanded contents made it easy for people to assume that Chapter 3 Article 1, rather than Charter Article XX, contains the code of ethics. The title of 3.1 should be changed to something like “Supplements to the Code of Ethics,” and the contents should be reviewed in light of the requirement that ordinances should be necessary supplements to the code. For example, is mere repetition of sections from Article XX justified by 20.04D?
3. A review of the relationship between the Board of Ethics and the administration in light of the board’s authority and responsibility per Article XX, the job description of the Boards and Commissions Administrator (Charter Section 7.06 adopted in 2006), and the County Attorney’s role (Charter Section 8.04). The board is not a part of the administration, but the fact that the Boards and Commissions Administrator and the County Attorney are appointed by the Mayor and serve the board can lead to the perception that the board is just another part of the administration. One key issue is whether the board has the right to seek outside counsel when it deems such counsel is needed.
I request that this communication be placed on the board’s April 9 agenda.
Wednesday, March 17, 2010
JAWS OF DEFEAT/SAY IT AIN’T SO
JAWS OF DEFEAT: About a week or so back we got a thus-far-unpublished letter to the editor from Horace Stoessel, the father of the 20.02(D) controversy- the man who first had the temerity to ask the Kaua`i Board of Ethics (BOE) to enforce the charter.
In it he surprisingly said he would compromise and support the “carve out” exemption for charitable organizations when county officials appear on behalf of private interests before county boards, commissions and agencies in order to get the rest of the provision enforced.
So today’s news that the Ethics Board has (had a) change of heart and voted to uphold the law after all the silliness of the past couple of years came as something of a shock.
Even Mark Hubbard who fought the hardest to make a mockery of the law voted for it although, according to reporter Mike Levine he still has remnant schizophrenic, double-talking tendencies in refusing to admit the past rulings clearing Hubbard and others were a mistake.
And of course, as the people’s champion former BOE member Rolf Bieber told Levine the proof will be in the pudding since, as we’ve seen, just because a clear statue exists it doesn’t mean people with conflicts will do what Hubbard suggested in saying exactly what we’ve written dozens of times:
(W)ith this interpretive rule, it’s now different than we’ve voted in the past, and I would have been in error in going before the County Council. I should not do that again, or I should quit my position on the Board of Ethics. I have a choice.”
It’s certainly a black eye for the gang of administration stooges at County Attorney Alfred “E. what me worry” Castillo’s office who didn’t even bother to do enough research to turn up the state ethics commission letter that convinced the BOE that they didn’t have any cover to continue to carve out exemptions or create “absurd result” excuses for their illegal activities.
Throughout the whole debacle people have asked basically “what the heck is the difference?.. it’s not as if this will magically clean up the corrupt, old boy network of the board and commission system”.
No it won’t. They will still try to make sure that if you wear the kings uniform you carry the kings sword. We’ve spoken to four people currently serving as a mayoral appointees who confirm that board and commission chief John Isobe made sure that they “support the mayor” before getting an appointment.
But it will shake out the most conflicted- those with an obvious reason to play the “one hand washes the other”, revolving-door game.
It also gives heart to those who still believe that a small, dedicated, persistent group- in this case Bieber, Stoessel, Rob Abrew and Glenn Mickens who did what most or can’t do... show up- can effect change even if it is incremental. Their success couldn’t have come about without Levine’s detailed news coverage and others like Charley Foster and Joan Conrow whose blog posts helped keep the issue before the public.
If they’re anything like us, these people do battle with the entrenched cronies not for the rare victory like this but for the fight itself because they have trouble living with themselves if they don’t.
As the Happy Camper might say, “hats off”, “kudos” and “three cheers” for them the real service-oriented citizens of Kaua`i.
----------
SAY IT AIN’T SO: Speaking of Levine it looks like the inevitable is about to come to pass. According to John Temple, the editor of “Peer News”, the nascent online Hawai`i news venture (thanks to Ian Lind for the heads up):
I’m happy to report that we’ve now hired the editorial team that will launch our new news service for Honolulu and Hawaii...
(T)he reporter hosts at Peer News will include:
Mike Levine, currently a reporter and assistant news editor at The Garden Island newspaper on Kauai. Mike has worked as a journalist on Kauai for a couple of years, after picking lettuce and acting as a tour guide there. He also worked for Fodor’s to update the Kauai section of the 2010 Hawaii Guidebook and Kauai Guidebook 3rd Edition. Mike worked as a news desk editor and writer at NBA.com before moving to Kauai. He’s a graduate of Lehigh University and the rare reporter to have majored in journalism and minored in material science and engineering.
We’re not sure if this means Mike will be leaving the local newspaper and apparently he will still be covering Kaua`i even if he does. But a statewide news services is unlikely to cover the detail of local Kaua`i news that his reporting has provided.
---------
We’ve off for the weekend tracking how soon we’re eliminated from the basketball pool. We’ll be back with a tear-stained entry Monday.
In it he surprisingly said he would compromise and support the “carve out” exemption for charitable organizations when county officials appear on behalf of private interests before county boards, commissions and agencies in order to get the rest of the provision enforced.
So today’s news that the Ethics Board has (had a) change of heart and voted to uphold the law after all the silliness of the past couple of years came as something of a shock.
Even Mark Hubbard who fought the hardest to make a mockery of the law voted for it although, according to reporter Mike Levine he still has remnant schizophrenic, double-talking tendencies in refusing to admit the past rulings clearing Hubbard and others were a mistake.
And of course, as the people’s champion former BOE member Rolf Bieber told Levine the proof will be in the pudding since, as we’ve seen, just because a clear statue exists it doesn’t mean people with conflicts will do what Hubbard suggested in saying exactly what we’ve written dozens of times:
(W)ith this interpretive rule, it’s now different than we’ve voted in the past, and I would have been in error in going before the County Council. I should not do that again, or I should quit my position on the Board of Ethics. I have a choice.”
It’s certainly a black eye for the gang of administration stooges at County Attorney Alfred “E. what me worry” Castillo’s office who didn’t even bother to do enough research to turn up the state ethics commission letter that convinced the BOE that they didn’t have any cover to continue to carve out exemptions or create “absurd result” excuses for their illegal activities.
Throughout the whole debacle people have asked basically “what the heck is the difference?.. it’s not as if this will magically clean up the corrupt, old boy network of the board and commission system”.
No it won’t. They will still try to make sure that if you wear the kings uniform you carry the kings sword. We’ve spoken to four people currently serving as a mayoral appointees who confirm that board and commission chief John Isobe made sure that they “support the mayor” before getting an appointment.
But it will shake out the most conflicted- those with an obvious reason to play the “one hand washes the other”, revolving-door game.
It also gives heart to those who still believe that a small, dedicated, persistent group- in this case Bieber, Stoessel, Rob Abrew and Glenn Mickens who did what most or can’t do... show up- can effect change even if it is incremental. Their success couldn’t have come about without Levine’s detailed news coverage and others like Charley Foster and Joan Conrow whose blog posts helped keep the issue before the public.
If they’re anything like us, these people do battle with the entrenched cronies not for the rare victory like this but for the fight itself because they have trouble living with themselves if they don’t.
As the Happy Camper might say, “hats off”, “kudos” and “three cheers” for them the real service-oriented citizens of Kaua`i.
----------
SAY IT AIN’T SO: Speaking of Levine it looks like the inevitable is about to come to pass. According to John Temple, the editor of “Peer News”, the nascent online Hawai`i news venture (thanks to Ian Lind for the heads up):
I’m happy to report that we’ve now hired the editorial team that will launch our new news service for Honolulu and Hawaii...
(T)he reporter hosts at Peer News will include:
Mike Levine, currently a reporter and assistant news editor at The Garden Island newspaper on Kauai. Mike has worked as a journalist on Kauai for a couple of years, after picking lettuce and acting as a tour guide there. He also worked for Fodor’s to update the Kauai section of the 2010 Hawaii Guidebook and Kauai Guidebook 3rd Edition. Mike worked as a news desk editor and writer at NBA.com before moving to Kauai. He’s a graduate of Lehigh University and the rare reporter to have majored in journalism and minored in material science and engineering.
We’re not sure if this means Mike will be leaving the local newspaper and apparently he will still be covering Kaua`i even if he does. But a statewide news services is unlikely to cover the detail of local Kaua`i news that his reporting has provided.
---------
We’ve off for the weekend tracking how soon we’re eliminated from the basketball pool. We’ll be back with a tear-stained entry Monday.
Tuesday, January 26, 2010
REAL OPTIONS
REAL OPTIONS: As our readers- and anyone who’s seen a council meeting lately- know, one of the more power-drunk county officials is often demented County Attorney (CA) Al Castillo who last week thought it was within his purview to order someone testifying before the council to remove his hat.
Castillo is the latest in line of CA’s that have acted as political hacks and stooges for the council and mayor, following in the “law is what we say it is” footsteps of Hartwell Blake, Matthew Pyun and Lani Nakazawa who is currently serving Mayor Bernard Carvalho as his own private attorney and political “advisor”.
We’ve called for a charter amendment to elect the county attorney since the current 10-year-long charter review commission (CRC) first met in 2004 but it has escaped their radar screen due partially to the fact that the post-2006 members don’t seem capable of walking and chewing gum at the same time except for regurgitating an old seven-time rejected amendment for four-year council terms and other assorted Titanic seating-chart tinkering.
Today we received an advance copy of a letter from CRC watchdog Horace Stoessel making the case for an elected CA with a particularly pithy set of choices.
Here it is.
OPTIONS
The county charter provides for the county attorney to be appointed by the mayor, with council approval, and to serve as the county’s chief legal adviser and legal representative.
The charter also mandates that the Charter Commission “study and review the operation of the county government under this charter” and propose amendments to the charter that it deems necessary or desirable.
Based on my observations of government operations and study of the charter, if the commission honors its mandate it has two options for proposing amendments regarding the county attorney’s office.
If the commission wants to bring the operations of the office into line with the charter, it should propose that the county attorney, like the prosecuting attorney, be elected for a four-year term, thereby freeing the office from having to serve not one but two political masters who are sometimes at odds with each other.
However, if the commission deems that the proper course is to bring the charter into line with current practice, it should propose adding a phrase to make the charter read, “chief legal adviser, legal representative, and political enforcer.”
For reasons too obvious to require spelling out, I favor a proposal for a four-year elected term.
Horace Stoessel
Castillo is the latest in line of CA’s that have acted as political hacks and stooges for the council and mayor, following in the “law is what we say it is” footsteps of Hartwell Blake, Matthew Pyun and Lani Nakazawa who is currently serving Mayor Bernard Carvalho as his own private attorney and political “advisor”.
We’ve called for a charter amendment to elect the county attorney since the current 10-year-long charter review commission (CRC) first met in 2004 but it has escaped their radar screen due partially to the fact that the post-2006 members don’t seem capable of walking and chewing gum at the same time except for regurgitating an old seven-time rejected amendment for four-year council terms and other assorted Titanic seating-chart tinkering.
Today we received an advance copy of a letter from CRC watchdog Horace Stoessel making the case for an elected CA with a particularly pithy set of choices.
Here it is.
OPTIONS
The county charter provides for the county attorney to be appointed by the mayor, with council approval, and to serve as the county’s chief legal adviser and legal representative.
The charter also mandates that the Charter Commission “study and review the operation of the county government under this charter” and propose amendments to the charter that it deems necessary or desirable.
Based on my observations of government operations and study of the charter, if the commission honors its mandate it has two options for proposing amendments regarding the county attorney’s office.
If the commission wants to bring the operations of the office into line with the charter, it should propose that the county attorney, like the prosecuting attorney, be elected for a four-year term, thereby freeing the office from having to serve not one but two political masters who are sometimes at odds with each other.
However, if the commission deems that the proper course is to bring the charter into line with current practice, it should propose adding a phrase to make the charter read, “chief legal adviser, legal representative, and political enforcer.”
For reasons too obvious to require spelling out, I favor a proposal for a four-year elected term.
Horace Stoessel
Monday, December 28, 2009
CHASING THE WHITE RABBIT
CHASING THE WHITE RABBIT: It’s anyone’s guess what participants will show up at the January meeting of the Board of Ethics (BOE). Certainly Rolf Bieber won’t be sitting on the inside of the rail but more importantly, the results of the meeting may depend on which deputy county attorney shows up- Mona Clarke who showed some signs of honest lawyering in her last appearance or Mauna Kea Trask who has proved adept at wielded the kings sword of evasion and deceit.
But the one person we know will be there is Horace Stoessel whose pen-knife wielding on the subject of charter section 20.02(d) is zeroing in on a death by a thousand cuts through his bulldog tenacity at stabbing away at Trask’s and his mentor County Attorney Al Castillo’s rapiers of jabberwocky.
Here’s Sir Stoessel’s latest parry in anticipation of January’s joust. Meet ya on the other side.
THE PRIMACY OF THE CHARTER OVER THE COUNTY CODE
TO: Kaua`i County Board of Ethics
FROM: Horace Stoessel
SUBJECT: The Primacy of the Charter Over the County Code
DATE: 12/28/09
I ask that this communication be placed on the January agenda of the Board of Ethics.
I believe it is essential for the Board of Ethics to ensure that its members are in agreement about the primacy of the Charter over the County Code , and specifically the primacy of 20.02D over 3-1.7, lest the confusion and conflict of the last two years be repeated in the future.
The confusion and conflict are rooted in two unsupportable assumptions.
First, the assumption that 20.02D is applicable only to the extent allowed by the three subsections of 3-1.7. Second, the broader assumption that the County Code is equal, or even superior, in authority to the Charter and can be used to limit or disregard charter provisions.
Both assumptions contradict the basic principles that ordinances are subordinate to charter provisions and that ordinances may only supplement charter provisions, not limit or preempt them.
It will be useful to review the point at which the two assumptions came into play. Upon receiving a request for an advisory opinion from Charter Commissioner Jonathan Chun in February 2008 as to whether he could appear as a private attorney before other County agencies on behalf of his clients, the board asked the county attorney for an opinion regarding the scope of 20.02D and 3-1.7(c), (d) and (e).
Instead of answering the board’s question directly, the legal opinion first misinterpreted the question to mean “whether these provisions of the Code have the effect of modifying the language” of 20.02D (emphasis added). It then offered the following inconclusive advice: “In conclusion, it is this office’s opinion that provisions in Section 3-1.7 of the Code serve to articulate and elaborate on the intent of the Code of Ethics, and they must be read in conjunction with the Charter provisions. In other words, Section 20.02D may not be read in a vacuum.”
Since the County Code is subordinate to the Charter it would have been more accurate to conclude that 3-1.7 cannot be read in a vacuum.
To determine the scope of these provisions means to delineate their applicability. The board already knew that Chun’s actions were not prohibited by the three subsections of 3-1.7 because it had issued an advisory opinion based solely on 3-1.7 just two months earlier in a comparable case, so it was looking for an answer about the applicability of 20.02D.
The short answer to the board’s question is that the three subsections of 3-1.7 differ in scope from each other, that all of them contain limitations on their applicability, and that all are narrower in scope than 20.02D, which expresses no limitations on its applicability. Therefore, reading the provisions in conjunction with each other leads to the conclusion that 3-1.7 was inapplicable in the Chun case and that 20.02D prohibited his appearing in behalf of his clients before county agencies.
The board overlooked the fact that the county attorney had not answered its question. It obviously accepted the attorney’s unfounded claim that 3-1.7 can modify the language of 20.02D. It then made a leap from the attorney’s conclusion that it must read the provisions in conjunction with each other to its own conclusion that Chun could continue representing his clients before other agencies. The net effect was that the board reached its conclusion by reading 3-1.7 in a vacuum.
Although the County Code links 3-1.7 to Charter 20.01, not to 20.02D, there is no harm in treating the three subsections of 3-1.7 as complementary to 20.02D. Harm comes when the subsections are utilized to restrict the applicability of 20.02D, and that is what happened in the Chun case.
The cure for two years of confusion and conflict is for the board to keep clearly in mind the primacy of the Charter over the County Code .
ADDENDUM: The second opinion received by the board begins and ends with language similar to the language of the first opinion. However, it differs in arguing that a “strict construction” reading of 20.02D would lead to absurd results. It does not claim or try to prove that basing a response to Jonathan Chun’s request for an advisory opinion on 20.02D would be an absurd result.
As we reported previously, case law in no uncertain terms states that if an interpretation of a provision yields “absurd results” it is the interpretation, not the statute, that must be discarded. But nothing goes as given at the BOE where the red queen has declared “execution first, trial later” and men on the chessboard are constantly getting up and telling you where to go.
---------
And in case you didn’t notice, another piece of the November chessboard is in place with Mel Rapozo’s announcement that, with open offices galore and ego-addled councilmembers eager to play musical chairs in no short supply, he will be taking the politically safe road this fall by running for county council, ending speculation that his notorious reach-exceeding grasp would cause him to seek higher office again.
We are ecstatic that, in fact, we will have Mel to kick around again but even happier that, for all his foibles, we may see someone on the council willing to occasionally mention the naked emperor and we can’t wait to see him move the personnel department and bike path scandals back on the council’s front burner.
But the one person we know will be there is Horace Stoessel whose pen-knife wielding on the subject of charter section 20.02(d) is zeroing in on a death by a thousand cuts through his bulldog tenacity at stabbing away at Trask’s and his mentor County Attorney Al Castillo’s rapiers of jabberwocky.
Here’s Sir Stoessel’s latest parry in anticipation of January’s joust. Meet ya on the other side.
THE PRIMACY OF THE CHARTER OVER THE COUNTY CODE
TO: Kaua`i County Board of Ethics
FROM: Horace Stoessel
SUBJECT: The Primacy of the Charter Over the County Code
DATE: 12/28/09
I ask that this communication be placed on the January agenda of the Board of Ethics.
I believe it is essential for the Board of Ethics to ensure that its members are in agreement about the primacy of the Charter over the County Code , and specifically the primacy of 20.02D over 3-1.7, lest the confusion and conflict of the last two years be repeated in the future.
The confusion and conflict are rooted in two unsupportable assumptions.
First, the assumption that 20.02D is applicable only to the extent allowed by the three subsections of 3-1.7. Second, the broader assumption that the County Code is equal, or even superior, in authority to the Charter and can be used to limit or disregard charter provisions.
Both assumptions contradict the basic principles that ordinances are subordinate to charter provisions and that ordinances may only supplement charter provisions, not limit or preempt them.
It will be useful to review the point at which the two assumptions came into play. Upon receiving a request for an advisory opinion from Charter Commissioner Jonathan Chun in February 2008 as to whether he could appear as a private attorney before other County agencies on behalf of his clients, the board asked the county attorney for an opinion regarding the scope of 20.02D and 3-1.7(c), (d) and (e).
Instead of answering the board’s question directly, the legal opinion first misinterpreted the question to mean “whether these provisions of the Code have the effect of modifying the language” of 20.02D (emphasis added). It then offered the following inconclusive advice: “In conclusion, it is this office’s opinion that provisions in Section 3-1.7 of the Code serve to articulate and elaborate on the intent of the Code of Ethics, and they must be read in conjunction with the Charter provisions. In other words, Section 20.02D may not be read in a vacuum.”
Since the County Code is subordinate to the Charter it would have been more accurate to conclude that 3-1.7 cannot be read in a vacuum.
To determine the scope of these provisions means to delineate their applicability. The board already knew that Chun’s actions were not prohibited by the three subsections of 3-1.7 because it had issued an advisory opinion based solely on 3-1.7 just two months earlier in a comparable case, so it was looking for an answer about the applicability of 20.02D.
The short answer to the board’s question is that the three subsections of 3-1.7 differ in scope from each other, that all of them contain limitations on their applicability, and that all are narrower in scope than 20.02D, which expresses no limitations on its applicability. Therefore, reading the provisions in conjunction with each other leads to the conclusion that 3-1.7 was inapplicable in the Chun case and that 20.02D prohibited his appearing in behalf of his clients before county agencies.
The board overlooked the fact that the county attorney had not answered its question. It obviously accepted the attorney’s unfounded claim that 3-1.7 can modify the language of 20.02D. It then made a leap from the attorney’s conclusion that it must read the provisions in conjunction with each other to its own conclusion that Chun could continue representing his clients before other agencies. The net effect was that the board reached its conclusion by reading 3-1.7 in a vacuum.
Although the County Code links 3-1.7 to Charter 20.01, not to 20.02D, there is no harm in treating the three subsections of 3-1.7 as complementary to 20.02D. Harm comes when the subsections are utilized to restrict the applicability of 20.02D, and that is what happened in the Chun case.
The cure for two years of confusion and conflict is for the board to keep clearly in mind the primacy of the Charter over the County Code .
ADDENDUM: The second opinion received by the board begins and ends with language similar to the language of the first opinion. However, it differs in arguing that a “strict construction” reading of 20.02D would lead to absurd results. It does not claim or try to prove that basing a response to Jonathan Chun’s request for an advisory opinion on 20.02D would be an absurd result.
As we reported previously, case law in no uncertain terms states that if an interpretation of a provision yields “absurd results” it is the interpretation, not the statute, that must be discarded. But nothing goes as given at the BOE where the red queen has declared “execution first, trial later” and men on the chessboard are constantly getting up and telling you where to go.
---------
And in case you didn’t notice, another piece of the November chessboard is in place with Mel Rapozo’s announcement that, with open offices galore and ego-addled councilmembers eager to play musical chairs in no short supply, he will be taking the politically safe road this fall by running for county council, ending speculation that his notorious reach-exceeding grasp would cause him to seek higher office again.
We are ecstatic that, in fact, we will have Mel to kick around again but even happier that, for all his foibles, we may see someone on the council willing to occasionally mention the naked emperor and we can’t wait to see him move the personnel department and bike path scandals back on the council’s front burner.
Tuesday, October 13, 2009
SAME OLD TAIL
SAME OLD TAIL: We’re still in limited typing mode and working on another story so today here’s a preview of Horace Stoessel’s latest letter to the editor dissecting the latest machinations of the Kaua`i Board of Ethics (BOE)- words with which we most stridently agree.
FROM AWKWARD TO UPRIGHT
How will the Board of Ethics extract itself from the awkward position it now occupies?
In June the board dismissed three ethics complaints based on Charter 20.02D pending its receipt of and concurrence with an opinion from the county attorney. One member, without whose vote one complaint could not have been dismissed, later said that he was mistaken when he voted in favor of dismissing the complaint, asserting that 20.02D prohibits attorneys serving on boards/commissions from appearing before county agencies in behalf of their clients. Have the complaints been dismissed or not?
In September the board took a similar provisional action in response to a request for an advisory opinion, only this time the board, contrary to its actions on the complaints, told the requester to stop appearing before the Council until it determined the right way to administer 20.02D.
The chairperson says that the solution lies in reaffirming the position taken by the board in March, 2008, when the board gave an attorney permission to continue representing clients before county agencies and purportedly based its decision on a legal opinion from the county attorney.
This proposed solution relies on two questionable assumptions: that a county attorney opinion must be accepted as authoritative regardless of its content and that this particular opinion justified the board’s decision.
The first assumption overlooks the fact that the charter designates the county attorney as the county’s chief legal adviser, not its only adviser, and the fact that the county frequently employs highly-paid legal advisers from Honolulu . If the board has questions about the quality of legal advice received from the county attorney it has the right, if not the duty, to seek a second opinion from a qualified neutral party. It does not have a right to turn over its decision-making role to the county attorney in blind faith.
The second assumption is simply mistaken. Even if the opinions received by the board since March, 2008 were flawless (which they are not), they still do not justify the board’s 2008 decision or provide guidance in the cases now awaiting a final decision by the board. The opinions merely conclude that 20.02D cannot be read in a vacuum without specifying what statutory and circumstantial details should fill the presumed vacuum.
I believe the solution is for the board to affirm the plain meaning of 20.02D and to justify any exceptions it makes to applying it in the pending cases.
Horace Stoessel
FROM AWKWARD TO UPRIGHT
How will the Board of Ethics extract itself from the awkward position it now occupies?
In June the board dismissed three ethics complaints based on Charter 20.02D pending its receipt of and concurrence with an opinion from the county attorney. One member, without whose vote one complaint could not have been dismissed, later said that he was mistaken when he voted in favor of dismissing the complaint, asserting that 20.02D prohibits attorneys serving on boards/commissions from appearing before county agencies in behalf of their clients. Have the complaints been dismissed or not?
In September the board took a similar provisional action in response to a request for an advisory opinion, only this time the board, contrary to its actions on the complaints, told the requester to stop appearing before the Council until it determined the right way to administer 20.02D.
The chairperson says that the solution lies in reaffirming the position taken by the board in March, 2008, when the board gave an attorney permission to continue representing clients before county agencies and purportedly based its decision on a legal opinion from the county attorney.
This proposed solution relies on two questionable assumptions: that a county attorney opinion must be accepted as authoritative regardless of its content and that this particular opinion justified the board’s decision.
The first assumption overlooks the fact that the charter designates the county attorney as the county’s chief legal adviser, not its only adviser, and the fact that the county frequently employs highly-paid legal advisers from Honolulu . If the board has questions about the quality of legal advice received from the county attorney it has the right, if not the duty, to seek a second opinion from a qualified neutral party. It does not have a right to turn over its decision-making role to the county attorney in blind faith.
The second assumption is simply mistaken. Even if the opinions received by the board since March, 2008 were flawless (which they are not), they still do not justify the board’s 2008 decision or provide guidance in the cases now awaiting a final decision by the board. The opinions merely conclude that 20.02D cannot be read in a vacuum without specifying what statutory and circumstantial details should fill the presumed vacuum.
I believe the solution is for the board to affirm the plain meaning of 20.02D and to justify any exceptions it makes to applying it in the pending cases.
Horace Stoessel
Monday, July 6, 2009
CAN’T YOU SMELL THAT?
CAN’T YOU SMELL THAT?: The Board of Ethics (BOE) is meeting this Thursday and as usual the agenda promises a fun-filled theater of the absurd. All the “regulars” will all be there and you couldn’t find a better morning’s entertainment.
Just show up at 9 a.m. at Liquor Conference Room on 1st Floor of the Mo‘ikeha Building.
For a preview of one item here’s a piece titled “Fair Treatment” from BOE watchdog Horace Stoessel.
If a person had been treated like the Board of Ethics and county attorney’s office have treated Charter Section 20.02D, how would the person feel?
During the last year and a half the board, relying on legal opinions, has (1) given Jonathan Chun permission to continue representing clients before county agencies even though 20.02D prohibits such activities by officers of the county, and (2) dismissed three ethics complaints filed by Rolf Bieber alleging violations of 20.02D.
Note: According to Charter Section 20.05G, the complaints could not be upheld as long as the Chun decision remains in force.
I have followed the process closely. There has been no shortage of statements from the board and attorney’s office aimed at proving that 20.02D cannot possibly mean what it says, or that the County Code amends or modifies the language of 20.02D, or that 20.02D is unfair and leads to absurdities and therefore should not be enforced.
County officers pledge to support and defend the charter. Bearing that fact in mind, I tried to remember statements I had heard or read from the board and the attorney’s office supporting and defending 20.02D. I couldn’t think of a single example.
20.02D appears in an executive session item on the board’s agenda for July 9 related to the ethics complaints dismissed by the board on June 4. The notice for executive session reads in part: “…to consider a communication from the County Attorney clarifying the opinion he gave to the Board on June 4, 2009 and providing the substantive basis for that opinion regarding Charter §20.02 D, County Code 3-1.7 and prior Attorney’s opinion dated March 5, 2008.”
Following the executive session the board will publicly “ratify” matters from the session. Since the board has already approved Chun’s actions and dismissed the complaints, can we reasonably expect the board or the attorney to “support and defend” 20.02D on July 9?
In case you missed it, check out our three part series on the BOE, titled “Unethical Culture- Government Service with a Personal ‘Touch’” linked on the left rail or click here for other PNN/gw? coverage of the circus.
Just show up at 9 a.m. at Liquor Conference Room on 1st Floor of the Mo‘ikeha Building.
For a preview of one item here’s a piece titled “Fair Treatment” from BOE watchdog Horace Stoessel.
If a person had been treated like the Board of Ethics and county attorney’s office have treated Charter Section 20.02D, how would the person feel?
During the last year and a half the board, relying on legal opinions, has (1) given Jonathan Chun permission to continue representing clients before county agencies even though 20.02D prohibits such activities by officers of the county, and (2) dismissed three ethics complaints filed by Rolf Bieber alleging violations of 20.02D.
Note: According to Charter Section 20.05G, the complaints could not be upheld as long as the Chun decision remains in force.
I have followed the process closely. There has been no shortage of statements from the board and attorney’s office aimed at proving that 20.02D cannot possibly mean what it says, or that the County Code amends or modifies the language of 20.02D, or that 20.02D is unfair and leads to absurdities and therefore should not be enforced.
County officers pledge to support and defend the charter. Bearing that fact in mind, I tried to remember statements I had heard or read from the board and the attorney’s office supporting and defending 20.02D. I couldn’t think of a single example.
20.02D appears in an executive session item on the board’s agenda for July 9 related to the ethics complaints dismissed by the board on June 4. The notice for executive session reads in part: “…to consider a communication from the County Attorney clarifying the opinion he gave to the Board on June 4, 2009 and providing the substantive basis for that opinion regarding Charter §20.02 D, County Code 3-1.7 and prior Attorney’s opinion dated March 5, 2008.”
Following the executive session the board will publicly “ratify” matters from the session. Since the board has already approved Chun’s actions and dismissed the complaints, can we reasonably expect the board or the attorney to “support and defend” 20.02D on July 9?
In case you missed it, check out our three part series on the BOE, titled “Unethical Culture- Government Service with a Personal ‘Touch’” linked on the left rail or click here for other PNN/gw? coverage of the circus.
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