CHASING THE WHITE RABBIT

CHASING THE WHITE RABBIT: It’s anyone’s guess what participants will show up at the January meeting of the Board of Ethics (BOE). Certainly Rolf Bieber won’t be sitting on the inside of the rail but more importantly, the results of the meeting may depend on which deputy county attorney shows up- Mona Clarke who showed some signs of honest lawyering in her last appearance or Mauna Kea Trask who has proved adept at wielded the kings sword of evasion and deceit.

But the one person we know will be there is Horace Stoessel whose pen-knife wielding on the subject of charter section 20.02(d) is zeroing in on a death by a thousand cuts through his bulldog tenacity at stabbing away at Trask’s and his mentor County Attorney Al Castillo’s rapiers of jabberwocky.

Here’s Sir Stoessel’s latest parry in anticipation of January’s joust. Meet ya on the other side.

THE PRIMACY OF THE CHARTER OVER THE COUNTY CODE

TO: Kaua`i County Board of Ethics
FROM: Horace Stoessel
SUBJECT: The Primacy of the Charter Over the County Code
DATE: 12/28/09

I ask that this communication be placed on the January agenda of the Board of Ethics.

I believe it is essential for the Board of Ethics to ensure that its members are in agreement about the primacy of the Charter over the County Code , and specifically the primacy of 20.02D over 3-1.7, lest the confusion and conflict of the last two years be repeated in the future.

The confusion and conflict are rooted in two unsupportable assumptions.
First, the assumption that 20.02D is applicable only to the extent allowed by the three subsections of 3-1.7. Second, the broader assumption that the County Code is equal, or even superior, in authority to the Charter and can be used to limit or disregard charter provisions.

Both assumptions contradict the basic principles that ordinances are subordinate to charter provisions and that ordinances may only supplement charter provisions, not limit or preempt them.

It will be useful to review the point at which the two assumptions came into play. Upon receiving a request for an advisory opinion from Charter Commissioner Jonathan Chun in February 2008 as to whether he could appear as a private attorney before other County agencies on behalf of his clients, the board asked the county attorney for an opinion regarding the scope of 20.02D and 3-1.7(c), (d) and (e).

Instead of answering the board’s question directly, the legal opinion first misinterpreted the question to mean “whether these provisions of the Code have the effect of modifying the language” of 20.02D (emphasis added). It then offered the following inconclusive advice: “In conclusion, it is this office’s opinion that provisions in Section 3-1.7 of the Code serve to articulate and elaborate on the intent of the Code of Ethics, and they must be read in conjunction with the Charter provisions. In other words, Section 20.02D may not be read in a vacuum.”

Since the County Code is subordinate to the Charter it would have been more accurate to conclude that 3-1.7 cannot be read in a vacuum.


To determine the scope of these provisions means to delineate their applicability. The board already knew that Chun’s actions were not prohibited by the three subsections of 3-1.7 because it had issued an advisory opinion based solely on 3-1.7 just two months earlier in a comparable case, so it was looking for an answer about the applicability of 20.02D.

The short answer to the board’s question is that the three subsections of 3-1.7 differ in scope from each other, that all of them contain limitations on their applicability, and that all are narrower in scope than 20.02D, which expresses no limitations on its applicability. Therefore, reading the provisions in conjunction with each other leads to the conclusion that 3-1.7 was inapplicable in the Chun case and that 20.02D prohibited his appearing in behalf of his clients before county agencies.

The board overlooked the fact that the county attorney had not answered its question. It obviously accepted the attorney’s unfounded claim that 3-1.7 can modify the language of 20.02D. It then made a leap from the attorney’s conclusion that it must read the provisions in conjunction with each other to its own conclusion that Chun could continue representing his clients before other agencies. The net effect was that the board reached its conclusion by reading 3-1.7 in a vacuum.

Although the County Code links 3-1.7 to Charter 20.01, not to 20.02D, there is no harm in treating the three subsections of 3-1.7 as complementary to 20.02D. Harm comes when the subsections are utilized to restrict the applicability of 20.02D, and that is what happened in the Chun case.

The cure for two years of confusion and conflict is for the board to keep clearly in mind the primacy of the Charter over the County Code .



ADDENDUM: The second opinion received by the board begins and ends with language similar to the language of the first opinion. However, it differs in arguing that a “strict construction” reading of 20.02D would lead to absurd results. It does not claim or try to prove that basing a response to Jonathan Chun’s request for an advisory opinion on 20.02D would be an absurd result.

As we reported previously, case law in no uncertain terms states that if an interpretation of a provision yields “absurd results” it is the interpretation, not the statute, that must be discarded. But nothing goes as given at the BOE where the red queen has declared “execution first, trial later” and men on the chessboard are constantly getting up and telling you where to go.

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And in case you didn’t notice, another piece of the November chessboard is in place with Mel Rapozo’s announcement that, with open offices galore and ego-addled councilmembers eager to play musical chairs in no short supply, he will be taking the politically safe road this fall by running for county council, ending speculation that his notorious reach-exceeding grasp would cause him to seek higher office again.

We are ecstatic that, in fact, we will have Mel to kick around again but even happier that, for all his foibles, we may see someone on the council willing to occasionally mention the naked emperor and we can’t wait to see him move the personnel department and bike path scandals back on the council’s front burner.

ANOTHER ROUND OF IMAGINARY KIBBLE MY GOOD MAN

ANOTHER ROUND OF IMAGINARY KIBBLE MY GOOD MAN: Sometimes it seem like people go out of their way to make our job of ridiculing the foibles of the powerful and wanna-bes a lot easier. And sometime the actual story is so unbelievable that people think we’re makin’ this stuff up.

So when someone questioned our derision of Councilpersons Mel Rapozo and Shaylene Iseri-Carvalho’s useless prescription drug discount card the other day we wanted to make sure we weren’t barking up the wrong tree and it actually was the bogus bupkis it appeared to be.

Afterall, you would think that no one is so stupid as to go through the chest-beating made-for-TV, election-year spectacle at last week’s Council meeting for something that is going to blow up in her faces.

But good-old reliable County officeholders rarely fail to make us ponder whether they are complete morons or think we are.

As reported and “as seen on TV” the new “Mel and Shaylene Card” appears to be a scheme thought up by the National Association of Counties (NACo) in order to make people think that their local politicians are getting them cheap prescription drugs.

The Mayor’s Administrative Assistant Gary Heu actually got in on the act by coming before the council and trying to horn in on the publicity saying that when “something is too good to be true it usually isn’t”, bungling the expression but nonetheless assuring everyone that he had checked it out and it was actually not some kind of scam.

But a little deeper look shows that, while it’s not actually some complicated con job to rip-off people trying to save money on prescription drugs it also doesn’t give anyone anything except for the pols who promote it.

It’s been impossible to find out what the card actually does because apparently it doesn’t do anything.

Surrounded with a plethora of methods of promotion for the program here is all that’s available regarding what the actual “benefits” are from the NACO web site.

Consumers always receive the lowest retail price. On occasion, pharmacies will price a particular medication lower than the discount rate available with the NACo card. If that occurs, consumers will receive the lower price. Either way, consumers will always receive the best price available.

As we said Saturday, “huh?”.. That’s it? Isn’t the retail price always the retail price?

Does this all mean, as a commenter claimed: “except when the price isn't the price. Bigger buyers like HMSA can negotiate a lower price than the walk up rate.”

So we called a few pharmacists and found out that the key is the word “retail price”. One told us that big medical insurance companies do dictate the price they pay by taking the wholesale price and saying to the pharmacy “you can make X amount of profit per prescription you fill for our clients- take it leave it”.

But those “prices” are not the retail price. And they aren’t applicable to the card, which is not allowed to be “combined” with any insurance coverage but is only for those paying cash for their prescriptions.

So unless drug stores are charging some people less than others- instead of discounting the “suggested” retail price as they all do- there’s no discount because that’s the price they charge, the highest and lowest being the same- the actual price, for people who have to pay cash..

And if they are charging more to some people for some insane and probably illegal discriminatory reason what makes you think that if you shove a piece of plastic wrapped cardboard in their face they’ll go “oh, we’ve been overcharging you and instead of the price you were going to pay we’re giving you the price we give those people we actually like.”

So what’s the harm? Let the people think they’re getting something for nothing and let the politicians sell us a pig with lipstick and a wig and tell us it’s a beauty queen.

Everyone wins. It’s a Steve Covey dream

Well according to one pharmacist the County went out to all the seniors at the neighborhood centers today giving out these cards and a few our kupuna have already come in for their “big savings” only to find out the card is useless.

And what’s all this costing? No word on who is paying for the physical cards themselves and in order to “find out more” you must be... well, Mel or Shaylene- i.e. members of NACo- and log in with your password.

The card are shipped from NACo via Fed-Ex according to the site but other information isn’t available to anyone but Rapozo and Iseri and they didn’t say anything about cost for the cards much less how exactly the card works to save anyone money despite their lengthy televised promotional presentation.

We do know who’s paying for all those County employees to go out and spend their time promoting and distributing the card and the neat little plastic card-holders that come with them.

But when you look a little deeper you’ll find this little scam.

When you go to the NACo web site you’ll see this.

The NACo Prescription Drug Discount Card program was designed for your uninsured and underinsured county residents. Through a partnership with Caremark, this simple discount card can save an average of 20% off the full retail cost of prescription medication.

And when you click to find out “more” or click on “prescriptions” (and pretty much wherever you click) you go to- surprise, surprise- the “sponsor” of the program,: mainland chain drug store giant CVS/Caremark’s on-line pharmacy.

And- surprise, surprise- you get the same price at the NACo/Caremark price calculator as you do if you go to the regular Caremark on-line pharmacy price calculator, for the popular cholesterol-lowering drug Lipitor which is $120.71 without the card and an amazing low low price of 120.71 with it.

How do they do it?- volume. No matter how many zeros you add they make zero.

And, when we reached the “right person” at the Honolulu administrative offices of Longs he said he “assumes”, “presumes” and “thinks” that it works by having the county actually reimburse the drug stores for what they “presume” is a 20% discount, finally admitting he didn’t know what the benefit was and would get back to us. He didn’t by press time.

But the Mayor’s office, as busy as they were today, confirmed that the County definitely does not pay anything, certainly not a reimbursement for any discounts.

We asked to be notified when the chain figured out what the real deal is and, as always if we’re wr-wr-wr-wr-(slap)-wrong we’ll let our readers know..

.A fraud is a fraud is a fraud. It doesn’t have to cost you cash for you to be defrauded. It can be your time and energy. It could be that when someone heard they’d get a 20% discount they went out and bought a new pair of shoes.

But it could be that someone will vote for those who claim to (sob on cue) care so much about us they, as Iseri said, “took the initiative in securing” this worthless piece of publicity-mongering re-election tool, straight from the Councils’ “trade organization”.

And more than likely some people will get all their prescriptions on-line from CVS thinking they’re getting them for less- actually hurting the local economy.

Iseri and Rapozo can’t have it both ways - either they’re dim-bulbs who got scammed by NACo and CVS/Caremark Pharmacies or they think we’re the kind of nit-wits who can be scammed with promises for a free air-sandwich lunch.

Either way it’s another day, another game of “limbo”... where every time we jump down turn around and pick a bale of kala the pols try to set a new record for “how low can you go”.