SEPARATING THE WHITE FROM THE RICE

SEPARATING THE WHITE FROM THE RICE: It can't be a surprise to anyone who has followed our coverage of"Rice-Cooker-Gate"- going back to November of 2010 - that Councilmember Tim Bynum has finally filed a malicious prosecution suit against Kaua`i Prosecuting Attorney Shaylene Iseri-Carvalho.

The content of the suit- the "Facts" section of which are presented below, interspersed with background material and comments- won't shock our readers very much either. But for anyone who hasn't been able or attempted to put our real-time exposure of Iseri's blatant abuses of power into an even more horrific narrative, Bynum's attorneys- including local lawyer Dan Hempey and former State Attorney General Marjorie Bronster- have served up for Iseri what many hope will be some measure of the proverbial "dish best served cold"

The barely-scratching-the-surface coverage in the local and Honolulu papers failed to go into any depth, as could be expected. And that left former Kaua`i Council Chair Kaipo Asing- the mastermind behind the political hatchet job against Bynum- pretty much unidentified.

While his role is central to the plot and he is identified in the narrative of the suit as a driving force behind the farce, he isn't named as a defendant, so his role has yet to be widely exposed.

For the underpinnings of the whole story you can use the search box at the top of this page to go back and read how much of the basis for the suit began with Bynum's challenges of the paternalistic power exercised by the once beloved and eventually corrupt and reviled "Uncle Chair," as Bynum and others had taken to calling Asing.

In brief, toward the end of his career, Asing, the one time "voice of the people," began to abuse his evolving power until the wheels of Kaua`i government meshed solely at his whim.

Bynum, along with now-retired Councilperson Lani Kawahara, dared to challenge Asing's power grab simply by asking for things like adherence to the state's sunshine and open records laws, general transparency and public access to documents. They even had to do battle to place items on the agenda, something that Asing had come to deny councilmembers on matters which Asing didn't want publicly addressed.

When she was a councilmember, Iseri, along with fellow Councilperson Mel Rapozo, had become the chief minions of the Minotaur, owing much of their political careers to Asing's benevolence.

Nothing was too much for Asing to ask.

Going deeper though, much of this whole debacle has roots- as does everything seemingly on Kaua`i- in the infamous "Lap Dancer" episode, as described in the book KPD Blue by Tony Sommer which is serialized at this site (see left rail). That led to the infamous Executive Session (ES) 177 where Rapozo, a former Kaua`i Police Department (KPD) officer who was present in the room at police headquarters that night she was fondled by officers, went into a rant about the incident and other potentially explosive internal KPD matters.

Despite orders from the Office of Information Practices (OIP) that the potentially explosive minutes be released publicly, Asing successfully went all the way to the Hawai`i Supreme Court (HSC) to protect Rapozo from exposure, leaving Rapozo- and his ally Iseri of course- forever politically indebted to Asing.

In addition to everything else, Iseri had her own personal feud going with Bynum, much of it seemingly a part of Iseri's well known "anti-haole (Caucasian)" attitude- a mindset finally manifesting itself in the recent settlement of an EEOC racial harassment case.

Another factor in Iseri's enmity for Bynum was her opposition to Bynum's measure which ended Transient Vacation Rentals (TVRs) on Agriculturally zoned land but allowed existing ones to be grandfathered in. It was a major issue on Kaua`i and passage of the resulting ordinance left Iseri, Rapozo and Asing seething and licking their wounds.

So Iseri needed very little prodding to join Rapozo in doing the dirty work for "team Asing" during the well-documented good governance "Battle Royale" between Bynum and Asing.

That set up the "set up," so to speak, and Iseri set on a path to "get" Bynum after she successfully ran for Prosecuting Attorney in 2008.

The "Facts" section of the lawsuit lays out a chilling tale of how Planning Department Supervising Inspector Sheila Miyake trumped up charges against Bynum at the behest of Iseri and ultimately Asing, both of whom are identified by Miyake as apparent co-initiators of the scheme to issue the notice of a building violation.

Missing is the back story of Asing's years-long quest to silence Bynum who had been a thorn in Asing's side on the council as we briefly touched on above. Those seeking to read the whole sordid tale can make good use of the search box at the top of this page, inserting names and terms we've used here in order to follow the blow-by-blow accounts we've presented over the past almost three years.

The detailed "facts," as presented in suit itself (in italics), are a worth a look too. So, interspersed with a little background, here they are.

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Beginning in 2008, BYNUM, following legal guidance offered by the Kaua'i County Attorney's Office, voted for certain amendments to Kaua'i zoning laws with which Defendants MIYAKE and ISERI-CARVALHO disagreed.

BYNUM's right to vote as he did was protected by the First Amendment to the United States Constitution and his votes related to matters of public concern.

Defendant ISERI-CARVALHO left employment with the Kaua'i County Council after she began her term as Kaua'i County Prosecuting Attorney in 2008.

Defendant ISERI-CARVALHO has a history of animosity toward Plaintiff. She harbors personal animosity toward the Plaintiff. She vehemently disagreed with Plaintiffs vote for certain amendments to Kaua'i zoning laws beginning in 2008.

Defendant MIYAKE has a history of animosity toward Plaintiff. She harbors personal animosity toward the Plaintiff.

The "amendment" was a successful effort by Bynum to "grandfather" existing Transient Vacation Rentals (TVRs) on agriculturally zoned land but ban new ones.

From there Bynum's suit sets up some of the events that led Iseri to go after Bynum

2010 was an election year for the Kaua'i County Council. After the election, it was known that Deputy County Attorney Michael Dahilig would replace the sitting Director of the Kaua'i Planning Department, Ian Costa as of December 1,2010.

Prior to the 2010 election, Attorneys Michael Dahilig and Ian Jung were employed as deputy county attorneys for the Defendant COUNTY OF KAUAI. These two attorneys were tasked with, among other things, advising the various employees of the PLANNING DEPARTMENT, including but not limited to Defendant MIYAKE, as to the proper interpretation and enforcement of the COUNTY OF KAUAI'S Comprehensive Zoning Ordinance ("CZO") as well as regarding the ability and/or constraints on Planning Officials to enter private property for the purpose of conducting inspections related to zoning compliance.

At all times pertinent to this matter, and to this day, Plaintiff was the owner of a single family home in Kapaa, Hawai'i.

Pursuant to the Kaua'i CZO, it is illegal to convert a single-family dwelling unit into a multi-family dwelling unit without an appropriate permit.

In 2005, BYNUM built an addition onto his home to accommodate the four (4) generations of family members living there at the time. The drawings for the addition went through informal and formal review by the Planning Department. Prior to permitting, a representative of the Planning Department informed BYNUM that the addition, as designed, was legal as long as no stove was installed. The plans for the addition were approved by the Planning Department, after being circulated to and approved by various departments including the Planning Department and a valid building permit was issued. The County sent inspectors during construction, and conducted a final inspection, after construction, after which the Plaintiff was issued a certificate of occupancy.

A laundry room separated the original home from the permitted addition. The door between the original home and the addition had a lock at the time the addition was approved and permitted. The permitted addition also contained a counter top/bar and a sink, as well as several electrical receptacles.

In March and April 2010, plaintiff BYNUM allowed his daughter's friend, Victory Yokotake, to occupy a room in and reside in the BYNUM family home.

While residing at the BYNUM home, Ms. Yokotake had access to the family kitchen.

In early 2010 a female came to the BYNUM residence and allegedly assaulted Victory Yokotake. A police officer came to the house to investigate. The police officer generated a report that incorrectly characterized the addition to the BYNUM home as a separate apartment.

At the time it was generated, this police report regarding the assault of Ms. Yokotake was a protected and confidential document, only to be lawfully viewed by members of the police department and the Office of the Prosecuting Attorney.

But even though there was nothing illegal in what Bynum was doing, Iseri was determined to bend the facts and the law- to the point of breaking- in order to put an end to Bynum's political career and, she hoped, to convict him of a supposed crime... one that didn't exist.

In early 2010 an unknown person who had lawful access to the police report informed Defendants MIYAKE and ISERI-CARVALHO that s/he believed that BYNUM was "renting out a portion of his residence" illegally.

Defendants MIYAKE and ISERI-CARVALHO each knew or should have known at the time of the report that there was nothing illegal about plaintiff renting out a portion of his home to his daughter's friend.

Upon receiving the allegation that BYNUM was renting out a portion of his residence, Defendant MIYAKE wrote down the reporting person's name as "Kalani Martin" although, upon information and belief, she knew that not to be true. MIYAKE also claimed on the report form that she generated that the reporting person "wants to remain anonymous." Upon information and belief, "Kalani Martin" never made the subject report to MIYAKE, but his name was used falsely by MIYAKE as cover for the true reporting person. MIYAKE knew the true identity of the reporting person. Nonetheless, she treated the report as an anonymous complaint.

Defendant MIYAKE has stated that she acted on the subject report because, inter alia, the Kaua'i County Council Chair, "Kaipo Asing, was asking."

Government Inspectors at the Defendant PLANNING DEPARTMENT are not legally authorized, absent a warrant or an exception to the warrant requirement, to enter onto private property to investigate an anonymous complaint that someone is renting out a portion of his or her home, especially where renting out a portion of one's home is not illegal.

Next is the smoking gun which we reported on years ago- an email from Iseri showing her to be the one who contemplated and initiated action in the matter before it was ever on Miyake's radar screen- or for that matter anyone in the planning department.

(http://parxnewsdaily.blogspot.com/2010/11/pnn-bynum-denies-report-of-illegal-unit.html)

Iseri has repeatedly denied she was in anyway involved in the matter until the planning department came to her with the supposed "violation" which the email disproves.

On or about April 7, 2010, before the Planning Department had instigated any investigation of the "anonymous" complaint, defendant Prosecuting Attorney ISERI-CARVALHO emailed then-Director Ian Costa of the PLANNING DEPARTMENT, stating: "Aloha Ian, We received information to corroborate an anonymous complaint dated March 26,2010 that was sent to the Planning Department and our office, that Councilmember Tim BYNUM was renting out his house, or a portion thereof. Can you let me know if renting out a portion of his residence is illegal given his land status, and what ordinance/statute would he be violating by doing so? Please advise. Much Mahalo, Shay."

Mr. Costa responded to Ms. ISERI-CARVALHO's email, advising her in relevant part: "The CZO really doesn't prohibit renting portions of structures. Even the issue of "lock-outs" is not addressed. The CZO does not dictate where locks are permitted and not permitted (thank goodness!). The issue would be whether the area, in question creates a "multi-family" dwelling. What was permitted is a "single-family" dwelling based on "one kitchen". If a second kitchen (area used for the preparation of food) is present, then a violation would exist for an illegal "multi-family" dwelling unit. I understand Sheila has been assisting and monitoring. Let me know if we can be of farther assistance."

Next is a description of Miyake's tangled web of illegal activity- activity which, she had been repeatedly informed, was anything but lawful.

Despite the Planning Director's correct interpretation of the CZO, i.e. that the allegedly anonymous compliant did not allege any illegal activity, Defendant MIYAKE nonetheless instructed her subordinate, Planning Inspector Patrick Henriques, to enter the BYNUM property and search for potential zoning violations. MIYAKE made no attempt to obtain a search warrant, or even consult with anyone about the necessity of a warrant before entering private property for the purpose of conducting a search for zoning violations.

Prior to searching Plaintiffs property without a warrant, MIYAKE made no attempt to contact BYNUM or anyone else in his household to schedule an inspection or offer him a chance to consent to or refuse the search.

In early April 2010 Defendant MIYAKE and Inspector Henriques entered BYNUM's private property without a warrant, without notice and without permission, went through a gate, walked up a wheelchair ramp in the rear of BYNUM's home, looked in his windows and took photographs of the inside of his

home.

While conducting the warrantless search of BYNUM's home, Defendant MIYAKE allegedly observed a portable rice cooker and a refrigerator in the addition/family room in the family home.

Defendant MIYAKE specifically timed her entry on to Plaintiffs private property to a time and date when she knew Plaintiff would not be home - MIYAKE knew BYNUM would be attending a Kaua'i County Council Meeting at the time.

But later when it was apparent Miyake was in a deep hole she did what most criminals tend to do... keep digging... and digging... and digging...

During a subsequent investigation into the allegations of zoning violations of BYNUM's property by the State Attorney General, Defendant MIYAKE claimed to a Special Deputy Attorney General, Richard Minatoya, that the previous Kaua'i County Attorney, Matthew Pyun had trained her that she could lawfully search a private home without the need for a search warrant and without notice or consent of the property owner, as long as the private home was associated with a use permit.

Upon information and belief, County Attorney Pyun never actually taught MIYAKE that she could conduct a warrantless search of a private residence, without notice to the property owner based solely on the existence of a use permit on the property.

After MIYAKE searched Plaintiffs house and allegedly observed the rice cooker, she consulted with deputy County Attorneys Jung and Dahilig about what she had seen. Each of those deputy County Attorneys advised MIYAKE that she had trespassed onto the BYNUM property, thereby engaging in an illegal warrantless search. One or both of the two deputy County Attorneys also advised MIYAKE that the presence of a rice cooker and a refrigerator in the lawfully permitted family room did not constitute a second "kitchen" within the meaning of the CZO.

Despite having been clearly informed by COUNTY lawyers that BYNUM had not committed a crime by allowing a tenant who allegedly put a rice cooker and a refrigerator in BYNUM's lawfully permitted addition, and despite having been informed by County lawyers that she had illegally trespassed onto the BYNUM property and engaged in an illegal warrantless search, Defendant MIYAKE nonetheless caused an Zoning Notice Violation to be issued to Plaintiff by the COUNTY OF KAUAI.

Now as anyone who has even deal with the planning department on this knows, what constitutes a kitchen often depends on what the planner had for breakfast as much as anything else and Miyake took full advantage of that. But one thing was always clear- to be a separate apartment there has to be a stove installed. The suit goes on to tell the sordid tale.

At all times relevant to this Complaint, the KAUAI PLANNING DEPARTMENT maintained an official policy or custom of inadequate training and supervision of its planning inspectors, with respect to what constitutes a "kitchen," the legal standards and requirements for searching private property, and Kaua'i planning inspectors have no uniform or written standards other than the CZO to as to what is or is not a kitchen.

Defendant MIYAKE has stated that "each inspector has his own kingdom" with respect to such determinations. There are no written guidelines for inspectors to follow when interpreting the Kaua'i CZO with respect to the definition of "kitchen" and such determinations are made ad hoc, arbitrarily and, in this case, capriciously and maliciously.

52. On or about April 15, 2010, MIYAKE directed Inspector Henriques to prepare a Zoning Violation Notice ("ZVN") to be issued against BYNUM, using a standard PLANNING DEPARTMENT template.

So, determined to pound the square peg into the round hole, Miyake kept digging, bringing Chair Asing's henchman, County clerk Peter Nakamura, up-to-date.

On or about April 15,2010, MIYAKE emailed the County Clerk, Peter Nakamura, with the subject line that read "4 your eyes only" and attached a copy of the April 15, 2010 ZVN. BYNUM was not informed of the ZVN for nearly one month later on May 12, 2010.

Defendant MIYAKE sent the email copy of the ZVN to the County Clerk, with the intent that it would later be made public and used against BYNUM in the coming 2010 election.

The Planning Department's April 15, 2010 ZVN form, alleged that a zoning violation had been found to "exist" on the Plaintiffs property. Such language, alleging the actual existence of a violation of the CZO, is necessary for such a Zoning Violation Notice to have legal effect — as due process requires the existence of an actual violation before civil or criminal prosecution for a violation of the CZO.

However, in BYNUM's case, the PLANNING DEPARTMENT caused the standard ZVN form originally issued in April 2010 to be altered on or about November 10, 2010 to change the sentence "we have found that a zoning 13 violation exists" to "we have found that a zoning violation may exist." (emphasis added).

At the time of the November 10, 2010 ZVN, there was no probable cause to believe that an actual zoning violation existed on BYNUM's property.

Upon information and belief, the Zoning Notice Violation prepared against BYNUM was the only such notice ever issued by the County of Kaua'i that had alleged a violation based on what "may" exist - instead of what actually did exist.

On or about November 10, 2010, then-Planning Director Ian Costa sent BYNUM a letter stating, "This notice shall supersede our letter dated April 15, 2010," and stating that "we believe ... violations of Chapter 8, Kaua'i County Code may exist."

The November 10, 2010 ZVN did not allege probable cause to believe that either a civil or a criminal zoning violation had occurred.

Defendant MIYAKE then sent the uniquely modified November 10, 2010 Zoning Violation Notice, which claimed only that the Planning Department "believed" that a violation "may" exist to the Office of the Prosecuting Attorney.

Prior to the uniquely altered ZVN, the PLANNING DEPARTMENT routinely cc'd ZVN's to the Office of the Prosecuting Attorney. However, until the BYNUM ZVN, the Office of the Prosecuting Attorney has never filed criminal 14 charges until and unless the Planning Department had made a specific request for such criminal charges to be filed.

So Miyake had created quite the legal mess for those around her. And Iseri's First Deputy PA Jake Delaplane was taking no chances on letting himself or his boss be the fall guy, even though Iseri was key in pushing Miyake into the hole in the first place.

In November 2010, Jacob Delaplane, Esq. worked under the supervision and direction of defendant ISERI-CARVALHO at the Kaua'i Office of the Prosecuting Attorney, as a deputy prosecuting attorney. 64. In November 2010, Defendant MIYAKE met with deputy prosecuting Attorney Delaplane to discuss the BYNUM zoning matter, in depth.

Delaplane was an attorney licensed to practice law in Hawai'i at the time he met with MIYAKE.

Delaplane secretly recorded the approximately two-hour long conversation with Defendant MIYAKE.

During the November 2010 meeting with deputy prosecuting attorney Delaplane, MIYAKE informed Delaplane that deputy county attorneys Jung and Dahilig had previously advised MIYAKE that she had illegally trespassed on the BYNUM property, and engaged in an illegal search when she entered Plaintiffs property without a warrant in April 2010 and allegedly saw the portable ricecooker inside the BYNUM family home.

A portable rice-cooker is not an "installed appliance" within the meaning of the Kaua'i CZO.

Miyake, unaware she was being set up by being taped of course, spoke freely with Delaplane who wasn't about to do jail time for anyone- Miyake, or even apparently Iseri, if it came to that.

During the November 2010 meeting with Delaplane, MIYAKE informed Delaplane that deputy county attorneys Jung and Dahilig had previously advised her that the evidence that she had allegedly observed during her warrantless search (a refrigerator and a rice-cooker in the family room addition) did not constitute a second kitchen with "installed appliances" as contemplated by the Kaua'i CZO.

During the surreptitiously recorded meeting between MIYAKE and Delaplane, MIYAKE told Deputy Prosecuting Attorney Delaplane: "It is all political but I will never say on stand that it is political. It will be my demise." The prosecution of BYNUM was indeed for political reasons. MIYAKE also opined on the secretly-recorded tape that "the good guys lost" in the 2010 election. Knowing that a new Planning Director was taking over the Planning Department as a result of the 2010 election, MIYAKE and DOE defendants then arbitrarily and capriciously issued the second ZVN against Plaintiff so that she could "cc" it to the Prosecuting Attorney just before the new Planning Director (i.e., Dahilig - the former County Attorney who had concluded that MIYAKE had trespassed, engaged in an illegal search, and who had questioned whether Plaintiffs home had a second kitchen within the meaning of the Kaua'i CZO) took office.

Finally Miyake fingered "the Godfather" naming the then Council Chair as the one at whose behest she was acting when she issued the violation notice- an action on Asing's part that, if true, would be a violation of the County Code of Ethics and punishable by fines and even jail time described in the county charter.

Mr. Kaipo Asing was the Chair or the County Council at the time the revised ZVN was issued to BYNUM.

After MIYAKE told Delaplane about the advice she had received from deputy county attorneys JUNG and DAHILIG, (regarding trespass, illegal search and the definition of kitchen) and in response to further taped questioning by Delaplane, MIYAKE stated that she and PLANNING director Ian Costa issued the ZCN in November 2010: "Because Kaipo wanted it. Kaipo was asking. And I gotta answer to the Council Chair."

In fact, Defendant MIYAKE had no obligation as a Planning Inspector to "answer" to the Council Chair as to who was charged with zoning violations by the Planning Department. To the extent that MIYAKE based her decision-making as a Planning Inspector on the malicious political wishes of the Kaua'i County Council Chair at the time, her decision to issue the ZVN was arbitrary, capricious and malicious.

The November 2010 ZVN was not a valid ZVN based on admissible evidence of an actual zoning violation, but rather was a uniquely altered document that had no legal effect, did not state probable cause, and simply alleged a "belief' that a violation "may" have existed.

The November 2010 ZVN was issued against legal advice of at least one deputy County Attorney and was instead issued for political reasons at the urging of then Kaua'i County Council chair - as established by MIYAKE's taped admissions to Delaplane.

Meanwhile, back at the OPA ranch Iseri was drunk with, among other things, power. And, she was just getting started. Her dominoes were set up, and it was finally time to knock them over

76. Despite having learned that the two deputy county attorneys who were tasked with advising the PLANNING DEPARTMENT had already advised that there was no probable cause to believe that BYNUM had violated any zoning ordinance, and despite knowing that the alleged rice cooker and refrigerator were only discovered as a result of an illegal warrantless search, and although the November 10, 2010 ZVN did not allege probable cause to believe that either a civil or a criminal zoning violation had occurred - Defendant ISERI-CARVALHO waited approximately one year (until the next election-year cycle) and then filed four criminal zoning charges against BYNUM in the District Court for the 5th Judicial Circuit.

Two of the four alleged criminal acts were based on the alleged presence of a rice-cooker and a refrigerator approximately one year and a half years earlier, and the other two charges were based on the alleged presence of a lock on the door between the addition and the original house - even though Planning Director Costa had already informed Defendant ISERI-CARVALHO that there was no law governing which doors inside a private home could or could not have locks, and even though the subject lock was the same lock that existed at the time the addition was permitted and the certificate of occupancy issued, years earlier.

Oblivious to everything but getting Bynum, Iseri had set the seeds of her own demise because there was "no there there." No matter how hard they squint, when rational people look at a rice cooker none of them are going to see an installed stove.

There was no probable cause for Kaua'i Prosecuting Attorney ISERI-CARVALHO to charge BYNUM with any crimes based on the alleged presence of a rice cooker and refrigerator in his lawfully permitted addition.

ISERI-CARVALHO would not have charged BYNUM with a crime had the Planning Department and MIYAKE not sent an unsolicited copy of the November 2010 ZVN to the Office of the Prosecuting Attorney.

Prior to charging BYNUM with four zoning crimes, ISERI-CARVALHO, or Delaplane, acting under her authority, had an investigator interview Victory YOKOTAKE about the BYNUM home. Although YOKOTAKE told the investigator that BYNUM was unaware of the rice-cooker in the addition and that she was welcome to use the BYNUM kitchen (such that she did not need a second kitchen) neither Delaplane nor ISERI-CARVALHO provided that investigator's report to BYNUM or his attorney while ISERI-CARVALHO was prosecuting him, despite written requests for exculpatory information and the constitutional requirement that such material must be provided to a criminal defendant.

During ISERI-CARVALHO' s investigation into whether BYNUM had committed misdemeanors in connection with the rice-cooker and door lock, deputy prosecuting attorney Jake Delaplane ordered Lucas Burns, another deputy prosecuting attorney, to interview Victory Yokotake, the pretext of the interview being that the interview was to assist with the prosecution of the earlier alleged assault against her, but with the real purpose of bolstering ISERI-CARVALHO'S case against BYNUM. The deputy prosecuting attorney was instructed to surreptitiously tape record the interview.

In April 2012, Lucas Burns testified about the unusually aggressive investigation technique involving misleading and surreptitiously recording a victim of an assault with the real intent of extracting from the assault victim, evidence against BYNUM's alleged zoning violations - having no real intent to bolster the assault case in any way.

Iseri had created quite the mess with "Rice Cooker Gate" stories circulating in "the blogs," as this and Joan Conrow's "KauaiEclectic" site are often cumulatively referred to in government circles.

But Iseri had other things to hide and when the budget for the 2012-2013 fiscal year came around things blew up publicly despite her attempts to keep aspects of her department's budget under wraps... not to mention her almost wacky attempts to keep Bynum from questioning her during the yearly departmental budget review hearings.

From January 2012 until approximately May 2012, while the criminal zoning charges were pending against Plaintiff BYNUM, the Kaua'i County Council was simultaneously considering various matters related to the operations and budget of the Office of the Prosecuting Attorney.

BYNUM had previously been a critic of many of Prosecuting Attorney ISERI-CARVALHO's decisions and he had planned to question ISERI-CARVALHO about her operations and budget as was relevant to the matters pending on the Kaua'i Council's agenda during these council meetings in early 2012.

Plaintiff BYNUM had constitutional rights under the First Amendment to the U.S. Constitution and the Hawai'i State Constitution to speak about and debate, as an elected member of the Kaua'i County Council, the operations and budget of the Office of the Prosecuting Attorney at official Kaua'i

County Council meetings.

However, on January 19, 2012, while the false criminal charges were pending against BYNUM, prosecuting attorney ISERI-CARVALHO wrote a letter to the entire Kaua'i County Council, on Office of the Prosecuting Attorney letterhead, demanding that BYNUM be recused from County Council meetings involving legislative oversight of the prosecutor's office, while the BYNUM's criminal case was pending.

ISERI-CARVALHO initially stamped this January 19, 2012 letter as "confidential" but later released it to the public and to the mass media and press, with some names redacted.

The January 19, 2012 letter to the Council contained various erroneous statements of law to support ISERI-CARVALHO's demand that BYNUM should be recused from legislative matters concerning the OPA.

Iseri had reached the point where she had lost all contact with reality, living in her own self-constructed World of Shay- aka the Office of the Prosecuting Attorney. The letter read like the rantings of a lunatic. The only problem is that the lunatic in this case had- and still has, until at least December 1- the discretionary power to imprison people.

The January 19, 2012 letter also contained numerous statements that are disparaging of Mr. BYNUM's integrity including that "[Councilman BYNUM] has a clear financial interest in the operations of the OPA, as he would directly benefit if the OPA's operations were negatively impacted by any action of the Council. By virtue of being a criminal defendant, he has a vested interest in ensuring that the OPA not operate at peak efficiency" and "BYNUM's paranoid belief that the actions taken by our office were calculated personal attacks against him is without any merit and is completely baseless." ISERI-CARVALHO intentionally withheld from the public or the Council that the Director of the Planning Department had already "cleared" BYNUM of any violation or that BYNUM was innocent unless proven guilty.

90. When ISERI-CARVALHO demanded BYNUM's recusal on the basis that ISERI-CARVALHO had charged BYNUM in a criminal case that was premised on an illegal warrantless search, without probable cause, and on an interpretation of the CZO that was contrary to that stated by then Planning Director Costa and contrary to the advice of deputy county attorneys Jung and Dahilig, she was acting under the color of state law.

BYNUM had a clearly established constitutional and statutory right to fulfill his responsibilities as an elected councilman and to fully participate in 2012 Council hearings related to the operations and budget of the Office of the Prosecuting Attorney.

ISERI-CARVALHO wrote the January 19, 2012 with the intent of denying BYNUM his rights guaranteed statutes and under the U.S. Constitution and the Hawai'i State Constitution.

ISERI-CARVALHO wrote the January 19,2012 under the color of her authority under state law as an elected public prosecutor.

94. ISERI-CARVALHO wrote the January 19, 2012 with the intent of silencing BYNUM in his capacity as an elected official with respect to the operations and budget of the Office of the Prosecuting Attorney.

ISERI-CARVALHO's conduct, in writing and publishing the January 19, 2012 letter and her making her comments derogatory comments about BYNUM on the Council floor would have chilled or silenced a person of ordinary firmness from future First Amendment activities.

Fearful of the Prosecutor's unprincipled ire, and not wanting to risk violating the law related to recusal as it was presented to the Kaua'i County Council by the Prosecuting Attorney, BYMJM ceded to ISERI-CARVALHO's demand for his recusal from the January, 2012 County Council Meeting. Thereafter BYNUM solicited an opinion from the County of Kaua'i Board of Ethics, which later concluded, contrary to the legal assertions made by ISERICARVALHO to the Kaua'i County Council, that BYNUM did not have a conflict of interest such that he should not be recused from fulfilling his duties as an elected councilman with respect to questioning ISERI-CARVALHO, as would any other elected member of the Kaua'i County Council, with respect to the OPA operations and budget.

But it wasn't like Iseri didn't have a couple of loyal supporters on the council: members Mel Rapozo and Kipukai Kuali`i did their best to throw up smoke screens and throw down oil slicks to obscure, slow down and, they hoped, eliminate challenges to Iseri.

On March 14, 2012 and again on March 21, 2012 there was a Special Council meeting item involving the Prosecuting Attorney's request for Council permission to hire a Law Office Assistant. At the opening of the latter meeting ISERI-CARVALHO notified the Council, through counsel, that she would be asking questions of BYNUM before she would agree to testify before the Council. The proposed questions to councilman BYNUM included whether he would "waive [his] rights" and if [he was] aware that "statements that you make can be used against you in the criminal proceeding."

This March 14, 2012 questioning of BYNUM on behalf of ISERI-CARVALHO would have chilled or silenced a person of ordinary firmness from future First Amendment activities.

During these 2012 County Council meetings ISERI-CARVALHO repeatedly referred to the charges that her Office had filed against BYNUM as the primary basis for removing him from any legislative oversight of the Office of the Prosecuting Attorney. In none of these references did ISERI-CARVALHO reference any presumption of innocence or acknowledge the fact of Plaintiff s innocence as established by the legal opinions of deputy County Attorney's Jung and Dahilig.

In addition to the pressures Iseri was maliciously causing in Bynum's public life her actions made a mess of his personal financial affairs when he put his home up for sale.

While all of these matters were happening, BYNUM had listed his home for sale. In the spring of 2012, he entered into a contract for the sale of his home. The sale went into escrow. The buyers, however, became concerned that the house may not have been properly permitted after reading about the prosecution of BYNUM in the local newspaper. In response, the buyers went to the PLANNING DEPARTMENT and inquired whether there were problems with the permitting of the BYNUM property. The representative of the PLANNING DEPARTMENT wrongly and maliciously informed the buyers that the alleged zoning violations would run with the land and transfer to any new owners. The PLANNING DEPARTMENT employee then falsely informed the buyers that they would not be permitted to rent out any rooms in the residence if they bought the home. In response to these, and other false representations from the PLANNING DEPARTMENT, the buyers cancelled (sic) escrow. The house remains unsold. The loss of the sale of the home caused BYNUM to suffer significant financial damages to be proven at trial.

Finally Bynum had his day in court so a judge could ostensibly say to Iseri "what are you, nuckin futz?"

So Oye, Oye. All rise for the courtroom scene- Take One:

On April 5, 2012 a hearing was held in the Fifth Circuit Court, State of Hawai'i, after which the Honorable Kathleen N.A. Watanabe ordered that the Office of the Prosecuting Attorney was disqualified from further involvement in the criminal zoning case against BYNUM.

Thereafter, the State of Hawai'i Office of the Attorney General appointed a Special Deputy Attorney General to take over the case from the disqualified Office of the Prosecuting Attorney. The Special Deputy re-investigated the facts and circumstances related to the alleged zoning crimes and very rapidly concluded that there was no provable case against BYNUM.

The Circuit Court, with the agreement and written consent of the Special Deputy Attorney General, dismissed the entire criminal case against BYNUM with prejudice.

Thereafter, First Deputy Prosecuting Attorney Delaplane, working under the authority of ISERI-CARVALHO told the local newspaper reporter that the dismissal did not equate to innocence.

Iseri is opposed by Deputy County Attorney Justin Kollar in the November 6 election.

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.

(PNN) OIP RULES ASING HELD '09 EXECUTIVE SESSION ILLEGALLY; MEETING WAS KEY IN CHALLENGE TO ABUSE OF POWER CHARGES AGAINST FORMER CHAIR WHICH LED TO H

OIP RULES ASING HELD '09 EXECUTIVE SESSION ILLEGALLY; MEETING WAS KEY IN CHALLENGE TO ABUSE OF POWER CHARGES AGAINST FORMER CHAIR WHICH LED TO HIS OUSTER.

(PNN) A key Kaua`i County Council Executive Session (ES) held more than two years ago was not "allowed under the Sunshine Law," according to a "Memorandum Opinion" issued by the Office of Information Practices (OIP) on Friday (June 29, 2012).

The June 4, 2009 ES was a major skirmish in the war between former Council Chair Kaipo Asing and Councilmembers Tim Bynum and Lani Kawahara over Asing's secrecy and dictatorial rule- a war which led eventually to the end of Asing's decades long political career when he was unseated in the 2010 election.

The opinion stated that:

In appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added. See HRS § 92-5(a)(4) (Supp. 2011).

However, given the length of the executive session and the fact that the County Attorney publicly announced his advice on whether the proposed item could be added to the agenda by vote, OIP infers that the discussion was not limited to advice on that legal question. Because the Council failed to rebut that inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and failed to provide any evidence or arguments to meet its burden to justify the executive session, OIP cannot find that the executive session was allowed under the Sunshine Law.

As PNN reported on June 5 2009 the OIP had previously warned that holding such an ES would be a violation of the state open meetings or "Sunshine Law" (HRS 92). In the article PNN also detailed issues over Asing's abuses of power according to essays by Bynum and Kawahara. The essays were posted at their kauaiinfo.org web site which the two used to post documents and information on Asing's penchant for secrecy and, in the dust-up at hand, his use of ambiguous council rules to block Bynum from introducing measures before the council.

The opinion itself says that:

Requester (Bra Parsons) asked for an investigation into whether the Kauai County Council (Council) violated the Sunshine Law by holding an executive session to discuss a motion to add an item to the agenda for its meeting held on June 3, 2009 (the Meeting). Unless otherwise indicated, this opinion is based solely upon the facts presented in Requester’s e mail correspondence dated June 4, 2009 and attached materials. Although OIP requested the Council’s position on Requester’s complaint, including a detailed explanation of the events in question, in letters dated June 5 and December 2, 2009, the Council did not submit its position or any factual explanation of the events. OIP thus takes the factual accounts in materials submitted by Requester, and any reasonable inference therefrom, as uncontested. Requester relied primarily on the facts presented in an article in The Garden Island newspaper: Michael Levine, Following the Rules.

Levine's article, upon which OIP attorney Jennifer Brooks said she based most of the opinion, describes the meeting, saying:

With the only two avenues of adding an item to the agenda — with Asing’s initial or through a floor motion — effectively closed off, Asing, who finished fourth in voting in November’s election behind Vice Chair Jay Furfaro, newcomer Derek Kawakami and Bynum, has essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.

After Bynum made the motion at the outset of Wednesday’s meeting, Asing moved the discussion to the end of the agenda.

Five hours later, after dealing with the six-page agenda, Asing said Section 92-7(d) of the Hawai‘i Revised Statutes precluded the council from voting on or even discussing Bynum’s resolution because it is of “reasonably major importance and action thereon by the board will affect a significant number of persons.”

Bynum provided to his fellow council members and the public a May 15 e-mail correspondence between himself and state Office of Information Practices staff attorney Jennifer Brooks in which she told him his proposed resolution “does not appear to be of reasonably major importance or to affect a significant number of people” and “appears suitable to be added to the agenda by a 2/3 vote, and the council would be acting in good faith in so adding it.”

Castillo said the unanticipated matter should be discussed in executive session to protect the council from potential liability. After a 5-2 vote approving the secret session — Bynum and Lani Kawahara dissented — the council closed its doors for about an hour.

When it reconvened, Castillo told the council “the proposed resolution encroaches upon the duties of the chairman as the presiding officer of the council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this county.”

“The people of Kaua‘i did not have an opportunity to know what was placed on the agenda. That’s the reason for the Sunshine Law,”Castillo said, adding that there are rules in place to govern how much time must elapse between the public posting of the agenda and the meeting to which it applies.
After Asing called the meeting back to order and ended discussion by quickly adjourning it to comply with Castillo’s advice, the chair was asked if there were plans to include Bynum’s resolution on the agenda for the next meeting.

“No,” he said.

When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”

“I am just following the rules of the council,” he said.

Readers can access additional PNN coverage of the matter via Parx News Daily archives from 2009. Some key posts include:

Tuesday, June 9, 2009: (PNN) OIP OPENS INVESTIGATION OF COUNCIL’S EXECUTIVE SESSION ON DENYING AGENDA ACCESS TO COUNCILMEMBERS

Wednesday, June 10, 2009: DON’T LET GO, DON’T LET GO

Thursday, June 11, 2009: DARKNESS, DARKNESS
Friday, June 12, 2009: ON AND ON, ON AND ON, ON AND ON

Monday, June 15, 2009: A DAY AT THE RACES

Wednesday, June 17, 2009: (PNN) KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.

Thursday, June 18, 2009: SAME OLD DOG, SAME OLD TRICK:

Because the OIP opinion is not (yet) available on line we are posting the entire "Statement of Reasons for Opinion" below:

Requester asked for an investigation and enforcement action against the Kauai County Council based on various news reports of the Meeting. Specifically, Requester questioned whether the Council’s executive session held to discuss a motion to add an item to its agenda was proper under the Sunshine Law.

At the time of the Meeting, the Council’s Rule 10 allowed any member to introduce any bill or resolution, but required bills and resolutions to be initialed by the Council Chair before being placed on an agenda. Certain members complained that the Council’s then-Chair would not initial bills and resolutions they requested, thus preventing those items from being placed on the Council’s agenda. One of the members thus affected, Tim Bynum, brought a motion during the Meeting to add to the Meeting’s agenda a resolution to amend Rule 10 to clarify that the Council Chair could not use the initialing requirement to indefinitely postpone hearing bills or resolutions requested by a Council member. The Chair moved discussion on Mr. Bynum’s pending motion to the end of the Meeting’s agenda.

When the Council reached the end of its agenda five hours later, the Chair, supported by County Attorney Al Castillo (County Attorney), stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on because the issue was of reasonably major importance and action thereon would affect a significant number of persons. Mr. Bynum responded by sharing an e-mail dated May 15, 2009, from OIP Staff Attorney Jennifer Brooks, which advised that the proposed resolution did “not appear to be of reasonably major importance or to affect a significant number of people,” that it “appear[ed] suitable to be added to the agenda by a 2/3 vote,” and that the Council “would be acting in good faith in so adding it.”

The County Attorney then advised the Council, which still had not voted on the motion to add an item to its agenda, to discuss the motion in executive session to protect the Council from potential liability. The Council voted 5-2 in favor of going into executive session, apparently for the purpose of consulting with its attorney, and then went into a closed session for about an hour. When the public meeting reconvened, the County Attorney announced that “the proposed resolution encroaches upon the duties of the Chairman as the presiding officer of the Council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this County.” The meeting was adjourned shortly thereafter, with no vote having been taken on the motion. As an initial matter, OIP notes that the e-mail setting forth OIP’s advice did not put the Council under any obligation to add the item to its agenda. An item may be added to a filed agenda only with “a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.” HRS § 92-7(b) (Supp. 2011). Thus, even if an item was qualified to be added to a Council agenda because it was not of reasonably major importance and action on it would not affect a significant number of persons, the Council’s failure to add the item to its agenda would not violate the Sunshine Law because it was up to the board to decide whether to add the item, and there was no vote to do so. OIP further notes that the c-mailed advice given to Mr. Bynum is consistent with the informal advice OIP has given in other situations regarding a board’s ability to add an alteration to the board’s internal procedures to an agenda by vote: the persons affected by a change to the Council’s rules regarding a member’s ability to place an item on the agenda would be only the nine Council members, who do not represent a significant number of persons when compared to the Council’s entire constituency.

Requester argues that the Council’s filed agenda stated that the Council can hold an unanticipated executive session “on any agenda item,” and based on that, Requester questions whether the executive session was proper when the issue being discussed was not an agenda item itself but instead was whether the Council could place an item on the agenda. The Sunshine Law anticipates that items may be added to an agenda and that an executive session not anticipated in advance need not be listed on a board’s agenda. $HRS § 92-7 (providing that notice of an executive session necessary only “when anticipated in advance” and explaining the requirements for adding an item to an agenda that has already been filed). Moreover, while section 92-5(b), HRS, bars a board from discussing matters not directly related to purposes listed in section 92-5(a), HRS, one of the permitted purposes for an executive session is “[t]o consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities.” HRS § 92-5(a) (5). OIP therefore believes that in appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added.

The question remaining to be resolved is whether the Council’s executive session discussion was, in fact, limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. As mentioned above, despite having been asked to provide its position on the complaint, including a detailed explanation, the Council did not provide any explanation of what it actually discussed during the executive session. OIP is required to receive and resolve complaints under the Sunshine Law, and in doing so to strictly construe the exceptions to the open meeting requirement against closed meetings. HRS §S 92-1 and 92F-42(18) (Supp. 2011). Thus, when a member of the public complains to OIP that a Council executive session was not in compliance with the Sunshine Law, the Council has the burden to justify that executive session to OIP. See id. In this case, the Council failed to meet its burden when it provided no response to OIP.

Additionally, the facts presented by Requester raise a reasonable inference that the executive session discussion was not limited to the apparent topic for which it was called, which was consultation with the County Attorney regarding the Council’s ability to add a proposed item by vote. In the public portion of the meeting, the Chair and County Attorney had already announced their conclusions on the question the board was supposedly considering, when they stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on and the proposed resolution could not be added to the agenda because the issue was of reasonably major importance and action thereon would affect a significant number of persons. The County Attorney repeated his opinion when the Council emerged from the executive session, which suggests that neither the Council nor the County Attorney was primarily concerned with protecting the County Attorney’s advice on the question of whether the Council could add the proposed item to its agenda by vote. The length of the executive session, approximately an hour, also suggests that the Council’s discussion was not limited to that fairly straightforward legal question.

From the length of the session and the fact that the County Attorney’s advice was publicly announced, OIP infers that the Council’s discussion was not limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. Because the Council failed to rebut this inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and did not in any way attempt to meet its burden to justify the executive session, OIP cannot conclude that the executive session was allowed under the Sunshine Law.

DRIVING MR. CRAZY

DRIVING MR. CRAZY: It's been almost a dozen years since the first in a line of Kaua`i county attorneys began a new interpretation regarding just exactly whom they serve.

And it's been almost a dozen years that we've been waiting for a Kaua`i County Charter amendment that would put some kind of "public component" back into the job.

But even though a proposed charter amendment is in the pipeline it appears it's only going to make things worse.

Of course that is predictable considering the source.

Councilperson Mel Rapozo can always be counted upon to make muddy political waters even murkier. This time he's outdone himself with a pair of Resolutions, #'s 2012-22 and 2012-23 (neither of which is apparently available on-line), that, rather than put the Office of the County Attorney (CA) as far outside the reach of politics as is possible in county government, will insure that petty disagreements between future councils and administrations grow to Hatfield and McCoy proportions.

The first, Resolution 2012-22 is not actually directly related to the county attorney. But it is a result of the original event that begat the short-circuiting smoke currently emanating from the ears adjacent to Rapozo's decidedly less-than-legal mind.

The "reso" stems from Mel's head-scratching and seemingly meaningless obsession over last year's "late" salary commission (SC) proposal. It spawned a CA opinion that explained what "shall" meant in the context of the SC section of the charter, saying it was "administrative" rather than "directional" and citing some judicial rulings to that affect.

It basically said "give it a rest Mel."

But them's fightin' words to the Baboozster.

Rapozo decided to go to circuit court for a "ruling" but Judge Randall Valenciano essentially said the same thing as the CA had said. So now Mel has decided to take his obsession to the voters and, in Resolution 2012-22 he proposes to put the matter before the voters.

The rest of the council seems less than enthusiastic and at the second and potentially final reading last Wednesday they deferred the measure "Proposing A Charter Amendment Relating To Definitions Of 'Shall', 'Must', And 'May.'"

Oh joy... we can hardly wait to see how those terms will be defined in the "Mel Rapozo Legal Dictionary." We wouldn't want to depend on Black's when we can get it straight from the horse's read end.

But Mel wasn't done. After proposing to redefine legal terms with a Rapozian slant, he's decided that it was the dastardly-brilliant legal mind of Mayor Bernard Carvalho, Jr. that concocted well-known Philadelphia Lawyer, CA Al Castillo's opinion on the matter.

As a result of Mel's fixation he came up with "Resolution No. 2012-23 "Proposing A Charter Amendment Relating To The Establishment Of The Office Of The Council Attorney" which would apparently divide the CA's office in two giving both the administration and the council their own independent county attorneys.

The pertinent parts of the current charter under "Article VIII- County Attorney" say:

Section 8.02. Appointment and Removal. The county attorney shall be appointed and may be removed by the mayor, with the approval of the council....

Section 8.04. Powers, Duties and Functions. The county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law.

But perhaps because he operates like them, Rapozo sees a political ghostie and ghoulie behind every door of the county's administrative offices and wants to enshrine his suspicions about Castillo's "opinions" by altering the county's overriding legal document, the charter, in his own image.

To understand how things got to this point- other than by simply saying "Mel got elected"- we need to go back to the history and evolution of the the functioning of the CA's office.

In 2001, then-newly-elected Mayor Bryan Baptiste hired current county "good-old-girl" Lani Nakazawa to her first-of-many positions with the county. She succeeded former Mayor Maryanne Kusaka's CA, Hartwell Blake, who rarely opined on anything other than how comfortable he was spending most of his years in the job sleeping under the air conditioner in the back of the council chambers.

Although the charter section on the CA is silent on anything relating to serving the public, before Nakazawa took office, CA's generally thought of the job as one that, while advising county administrative personnel as well as the council, publicly opined on questions of law regarding the county's charter, ordinances and administrative rules and routinely released those opinions to the public. .

He- yes of course they had all been "he's"- did it as part of what they saw as an implied "public component" of the CA's job.

When the 2006 Charter Review Commission (CRC) had its first confab one appointee was the former CA under then-Mayor JoAnn Yukimura, Michael Belles.

We attended that first meeting of the panel which was comprised of many surprisingly open-to-change appointees. In addition to testifying about our own experiences with shortcomings of the charter, we spoke to Belles during a break.

He asked what the one item was that we would most like see tackled. Our answer was "a total reorganization of all of Article VIII: County Attorney" especially parts regarding the "Appointment and Removal" and "Powers, Duties and Functions," excerpted above.

We explained the problems under Nakazawa which had included the fact that her strict reading of the section meant that she saw no public element to her job serving only county employees and officials- and never releasing any opinions unless her "clients" released them.

We even suggested that the CA become an elected position, thereby solving many of the problems created by conflicts between the mayor and council- or any two county entities for that matter.

Belles was surprised at the turn of events since his time as CA and said that during his tenure he would have "never imagined" that there was no "public component" to the job. As a matter of fact, he told us, he couldn't remember ever not releasing any of his or his offices opinion's of law.

A proposed amendment regarding the Office of the County Attorney's (OCA) never made it on any CRC list- it wasn't exactly a sexy issue and probably way too "inside baseball" for the public and maybe even the CRC. It wasn't even on commission members' radar screens.

They eventually put around a dozen-and-a-half amendments before the voters after narrowing it down from more than 30 original proposals so as to make citizen deliberation and decision-making manageable at election time.

But nothing on the OCA.

Ever since Nakazawa's reign, every county attorney has refused to release to the public opinions regarding interpretation of laws, especially those requested by the council. Add to that a council scheme to avoid releasing them until some convoluted, much debated, "process" for doing so was in place- something which the council under former-Chair Kaipo Asing quite mysteriously (yeah, right) could never figure out how to do- and of course no opinions were ever released.

That set up years of "Star Chamber" activities where not only couldn't they tell the public what the opinions were but the council would go into closed door "executive sessions (ES)" to even discuss what they were going to be discussing.

This year, under new Council Chair Jay Furfaro and after a years-on-end attempt by Councilmember Tim Bynum to just get the matter on the agenda under Asing, not only has a process been set up but opinions have even allegedly been "released."

But that's a big "allegedly."

Because damned if anyone has been able to get copies of the opinion or even find out if they have actually been released because the votes to release them have either been done in ES or, if they have actually been voted upon in open session, it's been done after the TV cameras have ceased to roll.

We still have not been able to get a copy of- or even figure out if it's available- the infamous opinion which, quite apparently, is actually at the heart of the Rapozo's discontent... the one that apparently says the mayor, not the police commission, has the authority to "discipline" or "suspend" the chief of police.

It's a perfect example of the continued dysfunction. The question of the release of that opinion was on the council's ES agenda for weeks on end only to stop appearing in March. Despite having asked numerous people who should be in the know, we still haven't been able to get a straight answer to the question of whether it's now a public document- much less get a copy of it if it is.

Oh sure- everyone including the Sultan of Brunei has referred to what the opinion supposedly says. But just try to get more than that out of anybody.

Today we're stuck with a definition of the appointment and duties of the CA that were written over 40 years ago at and for a time when the size of county government was probably less than a tenth of that of today. And the potential for political machination in- and so politicization of- the Office of the CA has grown exponentially along with that growth.

Throw one Mel Rapozo into the mix and something's gotta give.

Unfortunately the lack of political visionaries sitting around the council table- or at least ones willing to publicly spar with Mel over the matter- has enabled the original squeaky wheel to be poised to get all the grease.

And, as we intimated above, don't expect the CRC to tackle it. Chair Sherman Shiraishi has fully defeated the purpose of the CRC by coming before the council to ask them what they think each and every proposal the CRC is considering, effectively cutting the three ways of getting a charter amendment on the ballot- by citizen petition, by council resolution or by the CRC placing it there- down to two.

It looks like the council and mayor are going to "throw a rod" on the County's Truck-of-State long before anyone even bothers to look under the hood much less tackle a proper engine rebuild with what's best for the public in mind.

There's only one place that vehicle is being driven... and that's nuts.

GIMME THAT OLD TIME CORRUPTION

GIMME THAT OLD TIME CORRUPTION: Over the years many of the political old-timers have bemoaned the lack of "colorful" characters in Kaua`i officialdom these days.

"Where's the next Tony Baptiste or "Smokey" Louie Gonzalves? What about another Billy Fernandez?" they ask.

In all rhetorical honesty we've gotta suggest that there will never be another Tony, Louie or Billy.

In the day, self-enrichment and self-aggrandizement went hand-in-hand, and people expected it from those they elected. Corruption and abuse of power aside, what they say is missing these days is the pure bombast--the chest-thumping, booming oratory along with the routine mangling of language that went way beyond simply the use of pidgin in its curious misuse, mispronunciation and, well, general misappropriation of what used to be called "10 dollah words."

And though many have demonstrated elements of the old-time grandiloquent clap-trap and kleptomaniacal cronyism, none have embraced the whole package. Until recently.

Former Council member and current Prosecuting Attorney Shaylene Iseri-Carvalho has at least approached the old standard, and her escapades have been well chronicled in this space. Undisputed queen of the Malaprop, she also has the inability to speak more than a couple of hundred words without throwing in a "looooodicrous" or two, which accompanies a personal-vendetta style of governance right out of a "B" gangster movie.

But this week's chapter of her blood feud with Council member Tim Bynum may have reached the hallowed heights of yesteryear when her "Rice-Cooker-Gate" case against Bynum was ripped from her office-abusing hands as Fifth Circuit Court Judge Kathleen Watanabe got fed up with Shaylene and her First Deputy Jake Deleplane and threw the case to the state attorney general for disposition.

Readers might have gotten a small sense of Iseri's misbehavior if they read the oft-confusing and momentously-lacking-in-detail account in the local newspaper.

Apparently reporter Tom LaVenture was in a parallel courtroom to the one where journalist-reporter Joan Conrow observed the action, as Conrow actually quoted Watanabe, Deleplane and Bynum's attorney Dan Hempey in quickly and clearly getting to the point:

Lucas Burns testified he was working as a deputy prosecutor when Jake asked him to contact Liberty Yokotake, who had been assaulted by another woman while living at Tim's house. He said Jake coached him to use the assault case as a guise for asking questions about the layout of Tim's house and the location of various appliances, which could be evidence of a zoning violation. And all the while, Lucas would be surreptitiously tape recording the conversation.

The plot was foiled when Lucas refused to play along. "I thought it was inappropriate to secretly tape record and try to come up with reasons why these questions were being asked when it was really to investigate Mr. Bynum," he told the court. "I thought doing this with a hidden tape recorder and without the full knowledge of the victim was inappropriate and not something the first deputy should be doing."

What followed was a description of Deleplane's bafflingly incriminating courtroom antics and defense of Iseri and her office followed by Watanabe's excoriation of the two.

We won't try to summarize it all because it has to be read to grasp the full sleaziness of Iseri and Deleplane's apparently lawless activity, the gist of which has also seemingly been forwarded to the attorney general's office.

Those who have followed the case already know how Iseri apparently lied in trying to say that the whole case was initiated by the planning department. In fact, documents show that she was the one behind the apparently illegal searches and trumped-up charges against Bynum as revenge for Bynum's challenges to the paternalistic authority of her ally, former Council Chair Kaipo Asing (who not so oddly was in court for the hearing) during the time when she, Bynum and Asing were on the council together.

Those who have followed the story as told here (look for background by clicking the links above), in Conrow's KauaiEclectic blog, and, to a lesser and more confusing degree, in the local newspaper, have been appalled to this point by the inelegant abuse of power Iseri has exhibited during her reign as Prosecuting Attorney.

Some will be satisfied in knowing that current Deputy County Attorney Justin Kollar is running against her this November.

But if she is allowed to simply do as Smokey Louis and Uncle Billy (Tony Baptiste actually went to jail while he was mayor where he ran the county from his cell) and freely walk away, we'll only be inviting future Iseri's into office.

We urge the state attorney general not just to drop the non-case against Bynum, but to start an investigation of Iseri, if necessary kicking it up to the FBI, which has reportedly been looking into corruption and abuse of office on Kaua`i going back to the Bryan Baptiste administration.

We enjoy the entertainment factor as much the the next guy. But as much as we've enjoyed the laughs, when it comes to Iseri, our sense of humor is wearing thin.

IF TREES FALL ON KAUA`I WILL DEVELOPERS COMPREHENSIVELY ZONE IT?

IF TREES FALL ON KAUA`I WILL DEVELOPERS COMPREHENSIVELY ZONE IT?: The first step in what will arguably be the most important process taken up by the county council in recent memory was taken today after more than 20 years of discussion.

And most likely no one will notice. Or care.

The long delayed "CZO update" passed "first reading" today and will be going to a public hearing soon. But the measure, designed to clarify and simplify zoning on the island will probably do more to confuse and complicate matters than anything else.

According to the purpose statement of the bill (#2433) this "first phase" of the Comprehensive Zoning Ordinance (CZO) update is "focusing on organizational and format changes," and said to be "non-substantive" by council staffer Peter Morimoto.

It's 166 pages long... and that's the short version. The full "Ramseyered" version- with underlines and brackets to denote additions and deletions, respectively- is a thick monster of a document which was waved in the air at today's meeting. But since it replaces the entire CZO it has been introduced in the "short" form.

But just wait. The second "substantive bill" will no doubt be even longer and more complicated because it contains all the changes that the council and planning department have been putting off ever since the original CZO was passed in 1972.

Prior to then Kaua`i was "anything goes" when it came to building anything at all, anywhere one desired. That's why you see structures over 40 years old that make you ask "how did they ever allow that to be built?"--not just for the construction itself but for the location.

The 1972 CZO established standards for the first time on Kaua`i and has been amended in dribs and drabs over the years to form what one council member called a "hodgepodge" of a document that has plagued everyone who's tried to use it for decades.

Many "general" amendments were delayed or just blown off because no one knew where to put them or what precisely needed to change. And the ones that did get passed were just stuck in anywhere.

Since the mid 80's, every time the council came up against a problem with the document they would inevitably throw up their hands and say, "well- that's another one for the 'CZO update'." But of course that update never happened- until now.

Former Mayor from 1988-94 and now Council member JoAnn Yukimura told the council at today's "extended" meeting (after yesterday's power outage caused the meeting to be re-convened this morning) that her administration had worked on getting it done. And Council Chair Jay Furfaro said that when he served as Chair of the Planning Commission in 1997 he was promised by the planning department that it would be ready for commission scrutiny "by the end of the year."

Over the past decade-plus the council has appropriated money at least twice (some say three times but who's counting?) to allow the planning department to hire a consultant as the process became longer and more complicated.

That was during the reign of Planning Director Ian Costa whose use of what we've called "the fog" managed to bamboozle the council with promises of "soon" followed by requests for more money, followed by more promises of "soon" and more requests for more money.

Anyway, according to the purpose section of this first "housekeeping" bill:

The County of Kaua`i adopted the first General Plan in 1971 (updated in 1984 and 2000).

Subsequently, the County of Kaua`i adopted the Comprehensive Zoning Ordinance (CZO) in 1972. Since its adoption, the County of Kaua`i has approved several amendments to specific provisions of the CZO. However, the CZO has not been updated in a comprehensive manner since its adoption.

In order to present the CZO update in a more orderly fashion, the CZO Update has been divided into two phases, with the first phase focusing on organizational and format changes. This involves mainly moving or relocating existing provisions to more appropriate locations in the code. The first phase also includes the re-codification of ordinance amendments made to the CZO. The second phase will show the newly reformatted document with recommended substantive changes to the code in a Ramseyered format which will be forthcoming after the first phase has been completed.

Thus, the purpose of this ordinance is to complete the first phase of the CZO update by adopting all organizational, format changes, and to re-codify ordinance amendments made to the CZO to date.

The "second phase" will supposedly contain all the changes that people have sought over the years. But that, in and of itself, is going to be much longer and much, much more complicated.

And of course controversial.

You can count on the fact that developers will want certain measures to be amenable to development while the public interest will be to maintain control over that very development.

The devil will be in the details. With hundreds of pages of old and new provisions all up for grabs you can bet that the monied side will have banks of attorneys scrutinizing each "shall," "will" and "may" for an advantage- that all important "technicality" that will make a judge take notice.

Add to that the recent cap on development that was instituted after a petition-derived charter amendment limited growth to an amount determined in the general plan. And add to that the fact that another general plan update is due to commence any time now with the last one having been completed in 2002 and a charter mandate that they occur once every 10 years.

You can bet that the "development community" will be seeking to water down slow growth and "keep Kaua`i, Kaua`i" forces at bay at every step of the process.

The second phase will not be introduced until this first phase is done according to council staff and the content will come from the planning department where it will go though public hearings and planning commission approval before it eventually reaches the council.

If regular citizens want to participate in that process, the time to organize is not when the bill hits the council floor, but now while there is still time to formulate positions and get ready for those first planning commission hearings.

What the timeline is for all of this is anyone's guess. But those who are concerned about growth on Kaua`i can't start paying attention to this one too soon because there is no doubt the other side is already at work, having waited many years for this "opportunity."

As an aside, the actual text of the bill is available on-line, although apparently council members weren't aware of that today. That's probably because it's not at the council's page at the county web site but as part of the "Granicus" site, which is the company that does the video of the council meetings and where items are both streamed live and archived.

It's also where the "paperwork" accompanying each item on the council's agenda is now being posted.

A couple of weeks ago we wrote about the appearance of this "paperwork" for council agenda items on-line after years of delay- much of the delay, as we said, apparently intentional. At the time we complained that although Granicus was finally posting the material it was not in "text" form but rather as a scanned document.
http://parxnewsdaily.blogspot.com/2012/03/now-you-dont-see-it-now-you-still-dont.html

This week, however, many of the documents- including bills, resolutions and other communications- started to appear in text form, allowing the words to be copied and pasted from the document.

That's where the CZO update bill is posted and since the "new" CZO will replace the old one in its entirety, the new one is simply posted in its entirety.

We point this out because the council seemed blissfully unaware of the posting, even through apparently someone on their staff provided Granicus with the documents in the text format.

During the meeting council members kept asking their staff to "scan" and post a copy, seemingly unaware of the fact that it was available to the public in a text format through Granicus, although not in the Ramseyer format. But if Granicus could post the one they have there now, couldn't they also have put up a text-format copy of the Ramseyered document? (Unless the purpose is to cut down thousands of trees to provide paper to print everything out.)

Did anyone ever check to see if Kaipo Asing or Peter Nakamura had stock in either Georgia Pacific or Weyerhauser?

Well, we wouldn't be happy if we didn't have something to complain about.