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.

A MAN, A PLAN, A DEBACLE- RAPOZO

A MAN, A PLAN, A DEBACLE- RAPOZO: After decades of problems keeping the rain off the Kilauea Gym floor, the Director of the Kaua`i Parks and Recreation (P&R) Department, Lenny Rapozo, has finally come up with what many in the administration are calling a "brilliant" multi-pronged approach to fixing the structure which includes covering the current leaky roof with pili grass and moving the whole building 90 degrees to aviod the wet, easterly winds.

"A pili grass roof was good enough for the ancient Hawaiians so it should be good enough for us" said Rapozo, "especially if it's not raining."

The roof has never in human memory actually kept water out- which is thought by many in the Buildings Division of the Department of Public Works to be the main function of a roof- despite 137 attempts to replace it based on 373 different consultants' plans.

Rapozo also had a plan for the leaky door that faces into the rainy trade winds.

"We have hundreds of balloons and dozens of tanks of helium left over from the mayor's last campaign so we can just fill them up and float the building. And the beauty of it is that we can use all those political appointees and mayoral-approved civil servants who owe their jobs to him to turn the whole building, moving the door to a more desirable orientation... whichever way, after trial and error, that turns out to be."

According to Rapozo his own recent research has apparently shown that the current structure sits on the footprint and is a renovated version of the ancient "Kilauea Himanekium" where "pre-western-contact kanaka would go for drink beer." But, Rapozo said he discovered that during a 19th century renovation the building was inadvertently spun around sideways by witches, who were brought over for just such jobs by missionaries who were seeking to allow the structure to receive bigger shipments of bibles they could exchange for surrounding farms and home-sites.

"We're excited by the discovery" said Rapozo whose engineering expertise goes back to his days at Kapa`a High School where he lettered in "Pick-up Sticks" and "Tiddlywinks." He also studied basket-weaving, a skill he said may prove useful in the pili roofing project.

"I think I've got something here that nobody else could- or would- have come up with," Rapozo boasted with a straight face.

There are also plans to replace the wooden basketball floor with concrete and then put down lauhala mats in order to absorb any rainwater in case the pili grass leaks. "But the mats are only for when it rains because no one plays basketball in the rain anyway," said Rapozo. "Besides, the plan is all up here," Rapozo said pointing to his head "so we can save money on design consultants if the pili grass has to be replaced. Since everyone is used to paying over and over for consultants every year or so, we have an unending source of funding for the project, 'cause grass stay cheap, eh?"

Rapozo did not at first indicate where the cheap pili grass would come from since it is an all but extinct species but when asked of his plans for future recreational projects Rapozo said he's thinking of a Youth Program where students grow can pili grass on county land, then sell the product to the county for other roofing projects.

His boss, Mayor Bernard Carvalho applauded Rapozo's ingenuity. "That's why I hired him- since he has no expertise in any one particular area, he tends to think, not just outside the box but outside the entire realm of human endeavor and experience."

Rapozo also talked about- but didn't explain- either using the remaining balloons and helium to actually move Moran Pond at Lydgate or filling the balloons with the mud that now befouls the once popular swimming pools after a previous Rapozian plan to dredge the pools want awry... for some unfathomable reason.

"Then maybe the mud balloons will just float away," he said wistfully

Council Chair Jay Furfaro was cautiously enthusiastic over the plan saying "it wouldn't be the absolute stupidest thing we've ever approved- but it'd be close."

Councilperson JoAnn Yukimura was apparently skeptical but said she would have to see the plans in writing before she could really comment and recommend a thorough study of the project.

But Councilmember Mel Rapozo was both for it and against it, making sure that he didn't state a position until he figured out what the political implications were.

Blogger Andy Parx but did manage to wake up long enough to backhandedly mumble an ambiguous complement saying "it sound just like something Lenny would come up with since no one in the county is smarter or more suited to his job than he is."

DID YOU KNOW OR NO, YA KNOW?

DID YOU KNOW OR NO, YA KNOW?: The more you know the less you know because as you come to know what you now know you also come to know what you don't know. The trick is to know now what you don't know now and what you didn't know then... ya know?

Didn't think so.

What we do know is that even a gallon of hot sauce isn't going to make our keyboard more palatable after our misguided ingestion pledge last week.

Civil Beat's (CB) robo-calling poll accurately predicted an astonishing 20+ point win by Tulsi Gabbard (54.0%) over Mufi Hannemann (33.6%) in the 2nd US Congressional District Democratic Primary, proving to be more accurate than the Honolulu Star-Advertiser "real live person" poll, which had Mufi up by10. The fact that the difference was apparently due to exceptionally low totals for Esther Kia`aina (5.7%) and Bob Marx (3.7%)- who had been predicted to come in closer to 10% each- doesn't make our esophagus any wider or teeth any sharper.

But the results may have had little or nothing to do with the polling method because in the US Senate race it was the reverse with CB predicting a virtual tie and the S-A prognosticating a 12% margin for Mazie Hirono who actually won by 17% over Ed Case.

Go figgah.

Another thing we we got wrong, albeit a year ago, was our support for the winner of this year's Corrupt Pol of the Year award, Kaua`i Councilmember KipuKai Kuali`i. Though he didn't actually win in 2010 he wound up being appointed to the council. But the worst part is that he finished in the money this Saturday with an appropriate 666 finish - 6th place with 6.6% of the vote.

We do know now what we didn't know then- that asking people to "plunk" for Kuali`i in 2010 joins our qwerty-chewing pledge as one of our more bone-headed moves because he's turned out to be a first-class hack who's traded in his political soul in support of Prosecuting Attorney Shaylene Iseri-Carvalho's prosecutorial crime spree.

He now blindly follows Iseri adherent, her boot-licker-in-chief Mel Rapozo. Together they lead the goose-stepping cadre that champions our favorite race-baiter, "Ms Shay it, don't spray it."

That support grew out Kipukai's apparent back room deal for the redirection of a Victim-Witness program grant from Iseri's office to Kualii`s employer at the YWCA.

It's become laughingly obvious to anyone who watches the council in action that Kipukai has now gone to the dark side. But not only did he trade various votes to allow Iseri to get away with a slew of shenanigans and outright unlawful activity, it has cost the county a hefty chunk of cash in the form of an EEOC settlement for the firing of Victim Witness Counselor Erin Wilson.

Wilson was succinctly described by Joan Conrow as "the single mom who moved here all the way from Colorado to work as a victim witness coordinator, only to be fired a couple of months into the job because there supposedly wasn't enough work."

Of course there wasn't enough work because Iseri shuffled the job over to the "Y" in exchange for Kipukai's undying support for Iseri in the slew of past, present and we presume, future Shay-related scandals.

We do know that, unbelievably enough, for now, Kuali`i finished 1/10% (102 votes) ahead of Gary Hooser and 2/10% (152 votes) ahead of Tim Bynum in Saturday's useless election.

What we don't know is how to make sure that by Nov. 6 everybody knows about Kualii's little pact.

PROCESS OF ELUCIDATION

PROCESS OF ELUCIDATION: One of the more absurd of Yogi Berra's non-sequiturs was that "nobody goes there any more- it's too crowded."

When it comes the field of "acceptable" candidates in this year's elections the ballot is anything but crowded. That's the case up and down the ticket on Kaua`i but it's exemplified by the County Council election where a record low nine people are running for seven seats.

The key word there is "acceptable" because the way democracy has combined with capitalism in America we've managed to define "acceptable" as "corporate-funded, duopoly selected."

But that has little or nothing to do with the reason why Hawai`i in particular is at or near the bottom of the list in voter turnout. This week a six-part series by blogger/journalist Ian Lind in Civil Beat tried to explain why through statistical gymnastics that, while we're sure are true, seemed anything but insightful.

One thing missing in Lind's report is the "sun and surf" factor.

Stay with us. Hawai`i is the home of the tourism-industry crummy jobs that cause all members of the family to work at least two close-to-minimum-wage jobs apiece. With the cost of living higher than other places in the US, people just don't have time to pay attention to politics and certainly want to spend their leisure time doing something other than figuring out who to vote for.

Even though we political junkies don't see the logic in that, it makes more sense when you add in that "immigrants" don't exactly flock here to get involved in politics, which also goes for those born and raised here who have usually chosen to "stay home" after they finish school.

Most people are here one way or another because they can surf, hike, snorkel, fish and do all the things that make living in the islands unique. If anything, they came here- or stay here- because they are actually running away from places obsessed with politics and the like.

Then of course there are also those who aren't particularly interested in participating in what they see as the central activity that an "occupying nation" uses to justify their military control and "make the world safe for democracy." Though it's not a vast number who think that way, it's more than most people think.

But if you really want to know why few among the remaining are voting it may be the simplest reason of all: there's "no one" running.

Why vote when all the Democrats and Republicans are greedy power mongers who are all, in one way or another, on the take?

While there are exceptions that prove the rule like Mina Morita or Gary Hooser (who, maybe not so coincidentally, are both currently out of office although Hooser is seeking to return to the county council) it's been like pulling proverbial teeth to get people to run for office these days.

We just spent a year and a half recruiting candidates and didn’t find a one. We even lost a couple at the last second.

We approached almost every "community activist" we know, even some we disagree with because we knew that at least they fight for things they actually believe in. And every one said "thanks but no thanks," some adding "why in the hell would I want to do that?"

Indeed running for office is a daunting proposition. Just the prospect of having to ask people for money makes many back off. The idea of spending every spare moment for a year going door to door, attending every gathering and being subjected to more scrutiny than a prize pig at an auction is not one that makes one's heart go pitter-patter.

Surprisingly many say that actually serving- crafting legislation, guiding it through, going to meetings and all that intriguing stuff- is what they want to avoid because they'd have to deal with all the a-holes in office who, for the most part, actually enjoy all the back-stabbing political gamesmanship that got them into office and keeps them there.

Can you imagine having to sit there with Mel Rapozo or Dickie Chang- and not just sit there at a meeting but actually negotiate with and schmooze them? Are you going to listen to Jay Furfaro go on endlessly about his delusions of success or try to figure out why Kipukai Kuali`i would be aligning himself with Rapozo and the Queen of Spleen, Prosecutor Shaylene Iseri-Carvalho- and then actually come up with equally sinister plans to oppose their evil schemes?

What fun. Who'd wanna go surfing when you can listen to a three hour report on some incomprehensible, unattainable, feel-good plan to spend a million bucks to spruce up the county building parking lot?

So there you have it- an electorate that's already got better things to do and actually came or stayed here to get away from the backstabbing political culture on the mainland. And if they do take a look at the local political culture they see nothing but a bunch of moronic and vicious bozos appealing to what's left of the electorate. And those that do vote do so on the basis of who went to school with whom and whether they attend the same church... or cock fight.

And it's only getting worse. Don't forget the last mayoral election where the only one to run against a punch-drunk, concussion-syndrome-addled, ex-football player was a well-meaning too-smart-for-the-job, haole lady who'd lived here all of ten minutes. And this year, even with the criminally insane, moist-Malaprop-spewing Iseri running for prosecuting attorney against what appears to be a smart, honest and upstanding progressive apparently actually interested in serving justice (imagine that), it's still a race too close to call because she grew up here and he didn't.

It doesn't get any better with our choices for US congress where unlike the Kaua`i state legislative contest, there is one. For the U.S. house it's a war-obsessed vet who has gotten non-religion and is suddenly bigoted-no-more, running against a slimy pay-for-play veteran who has as much substance as dark matter. And for senate it's a pseudo-progressive against a pseudo-Democrat in the primaries and the winner gets to take on the Stepford Wife, chameleon ex-governor who has the unique talent for speaking out of all three sides of her mouth.

Those are our choices? Well actually not. Because even though we have convinced ourselves that we can only vote for one of them, there are others on the ballot, many of whom aren't corrupt caricatures of public servants. It's just that we've convinced ourselves we're not allowed to vote for them.

The fact is that people believe in the cockamamie "two party system" that has created a fraudulent scheme where legalized bribery is compulsory, corporate billionaires do the bribing and everyone is too intimidated to vote for the candidate they actually like because no one else will.

Maybe Yogi had it right: there's nobody running- the field is too crowded. In other words, why would you vote for Green Party presidential candidate Jill Stein? She's too popular.

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.

PLENTY OF NOTHIN'

PLENTY OF NOTHIN': It's gonna be the best of elections. It's gonna be the worst of elections.

Yes it's a dickens o' pickin's and a tale all too sh*tty when it comes to the most dismal number of candidates for the seven seats on the the Kaua`i County Council in memory. Yet on the plus side the enumeration of only nine names includes Gary Hooser, a politician who makes us reluctant to use the term to describe Gary since it's usually reserved for corrupt cronies and despicable despots.

Hooser, who started his public service career on the council from 1998-2002 before becoming the Kauai's State Senator from 2002-2010, is returning to his roots. His presence will no doubt bring the level of council discourse and accomplishment, if not to the highest rung of the ladder of good governance, a least out of the existing swirling sewer of percolating pestilence.

The problem is that the rest of the list is made up of the same old seven incumbent-hacks we've grown to, in some cases loath, in others tolerate, plus local and UH baseball hero, Ross Kagawa, who has two chances- the proverbial slim and none, with slim nursing a terminal illness.

So we're down to a proverbial game of musical chairs and the only reason to vote in the election- the one in November that is because all will get past the August 11 "primary"- is to see who gets dumped when Hooser is inevitably added.

While we are tempted to just "plunk" for Gary (a term for not using all seven votes and simply "plunking" down only the names of those who one truly likes) and may do so in November, for now we will list the rest of those running based on exactly how much of a worthless piece of crap each one is and why.

So for all you dumpers out there (and if you're not one, please register now) here's our list of dumpees in order of dump-worthiness.

1) Dickie Chang. This is probably the hardest choice- whether to make our good friend Dickie our least favorite or save that honor for Mel Rapozo. It's like trying to decide whether you like the guy who is repeatedly plunging a knife in your back or prefer the guy who is standing there watching, trying to decide when and whether to either encourage the stabber or condemn him... although it would certainly never occur to him too stop him.

Dickie is the proverbial man who, like former State Rep Ezra Kanoho for whom the phrase was created, "never met a hotel he didn't like." Dickie's penchant for lap-dog behavior- usually in the service of Chair Jay Furfaro- is infamous and when he does take a stand it is clearly taken with clay feet planted firmly on both sides of the fence. The one thing we can say about Dickie is that this is exactly what we expected from him. That of course makes-

2) Mel Rapozo the next one to not vote for. Mel manages to play politics with the simplest of no-brainers, using his unique blend of bamboozical logic and contortionistic, convoluted unreasoning as his moral compass- a compass that continually points in one direction... toward Mel. Perhaps the most emblematic representation of this bit of Kabuki is his recent attempt to change the charter because he didn't like an opinion from County Attorney Al Castillo’s office regarding the legal use of the word "shall." Rapozo didn't like what Castillo told him the law said and what the courts have consistently ruled on the matter, so he first tried to get his cohorts to hire Mel's own personal choice of outside lawyer to tell him what he wanted the law to say. When that failed he unsuccessfully tried to garner enough votes to put the matter before the electorate even though if it did pass it would be moot from the day it was enacted because it doesn't matter what our charter says when the state courts have already ruled on the matter.

Rapozo's "are-you-going-to-believe-me-or-your-lyin'-eyes" defense of Prosecuting Attorney Shaylene Iseri-Carvalho as she "took the fifth" and demanded a private attorney to represent her rather than openly discuss her budget with the council- has known no bounds, making for some fascinatingly fractured farces... quintessential Rapozo.

That brings us to the aforementioned "larger than life" (both girth-wise and in his own mind-wise) current Chair-

3) Jay Furfaro. Furfaro managed to eek out a 4-3 vote for chair last election, something that he may not be able to do with Hooser on the council. More on that later.

Furfaro is a throwback to the old style Hawai`i "orator" whose chest-thumping, credit-taking, egotistical style of expression is endlessly enigmatic to watch especially as lunch and sometimes dinner breaks are approaching. As the clock ticks toward noon it invariably throws him into incoherent ramblings and rushed decision making, commensurate with the decibel level of his stomach growling. To be fair, he is diabetic but his munching-vs-governing meter is out of whack even for someone who has "the sugar." Speaking of sweetness, the next on our bottoms-up itemizing is someone who turned out to be NutraSweet. That would be-

4) Kipukai Kuali`i. Kipukai was appointed after current State Representative and then Councilmember Derek Kawakami was appointed to fill Mina Morita's spot when she was appointed to be the head the Public Utilities Commission. People expected a lot from his "win" of 2010's post-election version of musical chairs and got virtually nothing. He has turned out to be simply a little less of a political animal than Rapozo and seems quite content to learn more at Mel's feet. Although he has gone after some of the more absurd council appropriations- when they suit his political bent- the last straw was his unshakable support for Iseri after she fired the Victim/Witness Counselors in her office. That eliminated the long-time county positions and instead she contracted out the duties to (drum roll please) Kualii's employer, the YWCA, ensuring his support before the council. He not only sold his political soul but he then refused to recuse himself from participating in the council's deliberations regarding Iseri. And speaking of disappointments there's-

5) Nadine Nakamura, although in her case disappointment may be a bit strong because we never expected any more than we got. The would be a politically malleable councilmember who doesn't seem to have a position on anything other than compromise, even when one of the options is at best unpalatable, at worst patently absurd. Her prime directive for the past two years has apparently been to take good legislation and introduce difficult-to-reject amendments that make the original unacceptable, even in cases when the votes are there for passage. Even if she did govern from a progressive viewpoint no one would know it because her experience as a facilitator and mediator have made her into a gutless wonder who makes one question whether there is any substance there at all. And speaking of substance there's-

6) Tim Bynum. Some would have him positioned at the bottom of this list for his effort to allow transient vacation rentals (TVRs) on Ag land, not to mention his previous work to allow them to be grandfathered on all otherwise zoned land. We can hardly ignore that and other positions he's taken. On the other hand he was, with then Councilmember Lani Kawahara, primarily responsible for the plastic bag ban and also successfully took on then Council Chair Kaipo Asing over open governance issues. What we can say is that at least they have apparently been taken because he believes in whatever he has supported. But if for no other reason than his persecution-prosecution by political enemy Iseri in the Ricecooker-gate scandal- an abuse of power on her part that we hope will end in November with the election of Justin Kollar (more on that race in a future post)- we have positioned him among the keepers this time. He could have folded but his persistence has unveiled alleged criminal activity on Iseri's part. All that pretty much also goes for-

7) JoAnn Yukimura. It's not that our disappointment with JoAnn has diminished to a level where we enthusiastically rate her the numero uno councilmember- although she has done some really good stuff recently.* But she also went along with Bynum on the Ag TVR issue and was the prime mover behind the grandfathering efforts, preferring to knuckle under to big money developers rather than go to court to enforce the laws apparently forbidding them.

We've questioned the consistency of those we have spoken to who were dead set against supporting Bynum due to the TVR debacle but were equally as supportive of Yukimura. We've simply asked them how they can condemn Bynum on that issue without doing the same for JoAnn.

All we can say is that is, on balance- and especially given the reality of the fact that six of the seven are going to be on the council whether we like it or not- we are forced to rate Bynum and Yukimura as "plunkworthy," to coin a term.

That leaves only one issue to be decided in November when it comes to the council race- the question of council leadership, which hangs in the balance.

After the 2010 election Yukimura challenged Furfaro for chair. Furfaro had Chang's, Rapozo's and, at the time, Kawakami's votes leaving Yukimura with Bynum's and Nakamura's.

In order to wrest control of the chair- assuming either Yukimura or possibly Hooser will challenge Furfaro and that Nakamura will maintain her vote for Yukimura- the addition of Hooser makes a change in the chair a distinct possibility. That also assumes that the odd-man-out is either Chang, Rapozo or Kuali`i. We can't be sure of Kualii's vote but suspect he is politically indebted to Furfaro after Furfaro gave procedural support to Kuali`i and Rapozo during some of the budget hearings regarding Iseri.

If the election were held tomorrow in addition to being shocked, surprised and totally taken aback, we would be forced to plunk for Hooser, Yukimura, Bynum and Nakamura since leadership is the only issue to be decided. But equally as important is NOT to vote for Chang, Rapozo, Furfaro or Kuali`i.

The August primary will tell us something about the strength of each candidate- it has always been like a super-accurate poll since 14 candidates usually get though to the November vote. In this case although all - and only- nine will make it through, we'll certainly know more about the strength of each by August 12.

One thing is all but certain- this mess of a council will make it through this year's election with six or seven intact. And while it gives us plenty to froth and foam about, any plans we've had to be a kinder and gentler rabid reporter may well end up, shall we say, going to the dogs.

*Correction: It was Tim Bynum who, along with Lani Kawahara, was primarily responsible for the single use plastic bag "ban," not, as we originally said JoAnn Yukimura who was not on the council at the time the bill passed. The original on line version has been corrected. We regret the error

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We are heartsick over the loss of Rose Schlegel, the daughter of our good friends Sherry and Jim (Pole) Pollock, who lost her life in an apparent freak accident in Kalalau Valley Wednesday. It is horrendous to lose any loved one but to lose a child, even one aged 30, is unimaginably tragic and their pain and sorrow must be unbearable. Please keep them in your thoughts and, if appropriate, prayers. It makes one wonder how such bad things can happen to such good people while selfish and mean people go unscathed. Don't forget to hug your loved ones, especially your keiki, today and every day. Life is fragile, seemingly especially for the righteous. We love you Sherry and Pole and will hold Rose in our thoughts forever.

OFF THE DEEP END

OFF THE DEEP END: Nobody questions whether rats will desert a sinking ship. But how long they will wait before doing so probably depends on the circumstances. But when one starts, the rest usually follow

Obviously they can't take too long, which is why at least two councilmembers decided they'd waited long enough to abandon the SS P.O.H.A.K.U and they'd be damned if they were going down with Captain Spittle of Malaprop.

Councilmember Nadine Nakamura was backpedaling like Michael Jackson on steroids. She apparently didn’t like her political prospects should she let stand as her final word on the subject her recent vote to allow Kaua`i Prosecuting Attorney Shaylene Iseri Carvalho to run out the clock. And Chair Jay Furfaro also smelled trouble should he do the same.

Even Kipukai Kuali`i and Dickie Chang silently went along with the program, leaving only Iseri's first Mate Mel Rapozo standing on the deck.

For those who thought last week's vote to pass the Office of the Prosecuting Attorney's (OPA) budget without any resolution to Iseri's scandalous refusal to answer until she got a county-paid special counsel to represent her was going to be the last word on the subject, guess again.

Because Wednesday (go to 9:24:20), after Yukimura introduced a measure to ask the Board of Ethics (BOE) to look into the matter and read a statement written by Bynum (see below) detailing Iseri's misdeeds (Bynum was absent due to the imminent birth of his first grandchild), it became apparent that continuing to allow Iseri to get away with alleged crimes and misdemeanors was a bad idea if they expected to get reelected.

Before Bynum's statement was read, Iseri's First Mate, Councilmember Mel Rapozo, had attempted to defuse potential defections by launching into a "my-my, it's enough to give a lady the vapors" spiel, tying to claim that he'd never seen anything like this level of scrutiny in his political career- seemingly forgetting about his own politically motivated crusade to oust former Chief of Police KC Lum.

He then announced that, anyway, the administration had "launched an inquiry" into the whole matter.

But when Yukimura read Bynum's statement and "corrected" Rapozo by saying the administration was looking into the procurement improprieties but not the general ethics charges, it became apparent that no one was going to stay aboard with Mel and Shay.

Bynum's statement read:

On April 11, 2012 the Council met in executive session on matters that included the POHAKU program. An Executive Session was posted for a briefing related to POHAKU on April 18, 2012. On April 18th Deputy County Attorney Mona Clark responded to members questions in open session. Ms. Clark indicated that the information was time sensitive stating “I think it is important that the Council has as much information as possible, as soon as possible.” Council member Yukimura asked if there were possible liabilities for the Council that could increase if additional time went by. The answer was yes. In spite of this, a majority of the Council voted to delay the discussion for two weeks. On May 2, 2012 the briefing was finally held. However no action was taken.

I have concerns (Bynum continued) among them are:

- The use of county address as the address for the registered agent of a private business.
- The fact that the Pohakuprogram.com website directs payment to a private business and the Council has not been provided with a copy of any contract with that business.
- The Prosecutor has refused to answer questions from the Council related to the Pohaku program until the County provides her special Counsel for legal representation.

Subsequently we heard that the POHAKU program had stopped operating, however Ms. Iseri-Carvalho said last Tuesday May 15, on the Council floor “our office can internally run the P.O.H.A.K.U program, which we will continue to do almost immediately.” As of yet no one is looking into the possible Charter violations. After what, in my opinion, is too much delay the posting for this body to take appropriate action is finally here before us today.

County officials take an oath to uphold the Constitution of the United States, The Constitution of the State of Hawai‘i and the Kaua‘i County Charter. I have been told by all the County Attorneys that have held the office since I became a Council member that when a question regarding a potential violation of the Charter is raised the Council has a duty to see that an appropriate inquiry is held. The Board of Ethics is an appropriate body for such an inquiry. So I will obviously support this motion.

But rather than outright supporting the call for an ethics referral, Furfaro announced that, at the request of County Attorney Al Castillo, he would support a deferral to either June 6 or 13 until the administration’s "inquiry" was finished.

But it was Nakamura who really started the stampede to the exits when she said she would essentially support the ethics referral saying she would "support the bullet points" contained in Bynum's statement. That caused the other two rats present to get caught up in the stampede and Kuali`i and Chang went along with the deferral since there were not only apparently not enough votes to defeat it but enough to approve, if not the referral to the BOE, then at least the deferral until June.

We'll see what the "inquiry" comes up with but for now there appears to be a growing awareness among councilmembers that, whether the local newspaper is covering the scandal or not, people have been following the story on TV and on-line. And if councilmembers want to maintain a spot on their own SS Council it may be time to abandon Iseri's leaky little POHAKU putt-putt.

BLOWING CHUNKS

BLOWING CHUNKS: It seems appropriate that sewage is once again spilling into the ocean at Nawiliwili. After all, all that crap being generated up the hill in Lihu`e this week had to go somewhere.

People all over town were asking "do you smell that?" on Tuesday and it didn't take an olfactorally-advanced detective to discover the source as being the Kaua`i County Council Chambers.

That was when our seven stilted servants once again turned to the budget for what, from all indications, appears to be the biggest criminal enterprise on Kaua`i these days- the Office of the Prosecuting Attorney (OPA). Those who have been under a pohaku might want to read up on OPA Godmother Shaylene Iseri-Carvalho and her P.O.H.A.K.U. program.


And another great must-read, blow-by-blow account of Tuesday's session is available via Joan Conrow for anyone who doesn't have the time to watch the debacle... although the latter is well worth the investment of an hour (start about an hour in) if just for the comedic value.

No one expected much in the way of discussion regarding evil mastermind Iseri's all-purpose now-you-see-it-now-you-don't combination misdemeanor diversion program/reelection campaign tool. She's been busy lawyering up and taking the fifth so to no one's surprise, with the aid of her Council(hench)man Mel Rapozo and his refuse-to-recuse sidekick Kipukai Kuali`i, her council nemesis Tim Bynum and his second JoAnn Yukimura once again failed to get any "answers" to the same kinds of questions all the other department heads had to answer in order to receive their yearly budget appropriation.

Lesser Iseri sycophants Council Chair Jay Furfaro, and Councilmembers Dickie Chang and Nadine Nakamura managed to help shut things down out and keep the relevant allegations of crimes and misdemeanors from the public's ears and eyes, running out the clock without any repercussion to the budget... and of course the local newspaper has been too busy promoting flower shows, defunct food banks and poisonous GMO corn to notice the P.O.H.A.K.U. mess.

But while the council busied itself exploring new corners and crevices on the other side of the looking glass, it might well have been County Attorney Al Castillo who stole the show.

This week's prize for "Most Convoluted Abuse of the Law" goes once again to the program "Legal Opinions From Al's Ass," the show that asks the statutory question "did he really just say that?"

This time Castillo actually told Yukimura that the council can't appropriate "line items" in the budget- specific amounts designated for specific uses like a salary for a certain position or a piece of equipment or furniture.

Despite the fact that that's what a line-item budget does by definition, Castillo told the assembled that to restrict department heads as to what the money can be used for would be violate "the separation of powers" and be "interfering with the administration."

After a few "let me get this straight" questions, Yukimura simply gave up, flabbergasted by the notion that a department head like Iseri can now take all money appropriated for her department and spend it on anything her black little heart desires.

Finally things got as curiouser as they could get when Nakamura revealed that, according to the finance director, the P.O.H.A.K.U. was either "pau" or "suspended". But attempted verification of that information apparently depended on how many times one asked the question, so the council spent the next half hour asking over and over until Iseri herself got up and told them it wasn't really pau or suspended but rather being run internally in her office.

By that point everyone was thoroughly confused and befuddled, but it didn't really matter because that was when Furfaro ruled the clock had officially run out, apparently because the only part of the day that matters to Furfaro was beckoning: lunch.

The next move in this monkey chess game will be played at this coming Wednesday's council meeting when, the council will consider the following agenda item:

C 2012-170 Communication (05/17/2012) from Councilmember Yukimura, requesting Council approval of her request that the Board of Ethics conduct an investigation of whether violations of the Code of Ethics have occurred in connection with the creation and operation of the POHAKU Program and related matters.

In addition, the matter is listed for an executive session.

And speaking of wasting time, get ready to once again to vote on a charter amendment that would give these clods four-year terms.

The claim by councilmembers is that "we can't get anything done in two years." But the message from the voters has been "we're not sure we want you to 'get anything done.' If there was a way to give you two month terms, we'd probably go for that."

It's not like Kaua`i voters haven’t said "no freakin' way" way too many times to keep track of over the past few decades. Yet the council is once again apparently going to ask the electorate to approve doubling the time between elections. The last time we said "no" was in 2006 when we also passed "term limits" of eight years.

If you get a chance watch the "debate," do so with an eye toward the unmitigated arrogance and sense of entitlement.

The assumption that these office are theirs once they are elected is palpable. Talk of "slots opening up" when the "eight-years are up" is bandied about with no sense of the fact that they have to run for re-election every two years.

The voters will no doubt reject four-year terms once again and the council will no doubt try again in a few years. If anything, we'd probably pass a charter amendment to prohibit the council from asking us more than once every 20 years.

But if you're looking for the obvious source of the sewage spill it might be the latest "big flush" of $120,000 into the Kaua`i Marathon. Every year it's been the same thing- for no apparent reason the taxpayers have been forced to shovel wads of cash into the event with promises that "this will be the last year." Only it hasn't been and apparently never will be since this year's appropriation seems to be circling the drain with little opposition from council members.

That money could go a long way if it were to be spread wisely among the charitable non-profits that serve the island's neediest. But instead it's shunted directly into the coffers of hotel owners, airlines and other off-island entities, soon to be converted into campaign contributions. Supposedly a few dollars will trickle-down to local businesses and service industry employees, but no one is really quite sure how that works, and council members didn't seem interested in asking any questions so they weren't told too many lies.

It is an election year after all. It can only get worse.