HUNG UP?

HUNG UP?: Getting telephone polled (and everyone knows how painful that can be, as Steve Allen used to say) used to be a rare event. While some were annoyed at having to answer questions from a stranger at dinner time, more often "poll-ees" felt that it was so out of the ordinary that they might as well thoughtfully answer the "poll-ers'" questions.

But this year, with the ubiquitous use of the "robo-call"- those pre-recorded "push '1' if you plan to vote for candidate 'X'" calls- we knew it couldn't just be our imagination that the phone seems to ring with these things once a day and twice on Sunday.

We've actually answered at least a half a dozen of theses things this year and screened out another large handful- usually with an "egad, not again" attitude- more than the total number we've ever received over the years.

We'd gotten a strange feeling that these robo-calls- a term that some consider pejorative even though it's the common parlance for any pre-recorded call- were yielding bogus results for a long time, for many reasons.

But the absurdly counter-intuitive results of a "Civil Beat (CB)" poll yesterday that has Tulsi Gabbard taking a sudden and stunning 49%-29% lead over Mufi Hannemann in the 2nd U.S. Congressional District race, all but confirms our suspicions... especially coming, as it does, on the heels of a CB-reported tie a few weeks back and a 10 point lead by Hannemann in a "Hawai`i News Now/Star Advertiser HNN/SA" poll a week before.

Even with the respective "margins of error" a simply statistical explanation doesn't cut it. There has to be something else going on here.

And if our experiences, along with those of some of our Facebook "friends," is any indication it is the robo-calls themselves that provide an explanation.

First of all it appears that only those with a "land-line" have been robo-called. Those with cell phones need not apply. Some say that this discriminates against younger and poorer voters being included but no matter what demographic groups it favors, the results are going to be skewed one way or another.

It may be simply the annoyance factor that causes people to auto-hang-up on auto-calls.

We've developed a habit of doing just that. Whether it's the recent polling or other calls of late, as soon as it becomes apparent that the call is a recording, we hang up,`` having developed the attitude that if it's not important enough for them to call personally it's not important enough for us to answer.

Plus of course there is the modern phenomena of screening calls based on caller ID. This may vary with how busy one is at the moment but if we're busy in the kitchen and an unknown mainland number comes up, we're a whole lot less likely to answer it- and even less so if the caller's number and name are blocked.

We basically asked our Facebook "friends" if they had landlines or cells, how many calls they got and whether the calls were "live or Memorex" ("taped," for all you youngsters) as well as how the number of calls compared to past years.

What we found is that that we're not alone in our response to robo-calls or "touch-tone polling" as Civil Beat would prefer they be referred to. Here are some of the responses left on on our Facebook page (all "Sic"):

- I have been getting at least 3 to 4 a week on land line. I hang up or don't take calls but then they go to message and I still have to deal with them. Most of them come in early evening. They are from everywhere; local, state, fed.

- I think I've probably gotten about 3 in the last month. Not sure. I hang up as soon as I realize its a computer. Been getting a few voice mails asking me to vote for their candidate

-1) hangup on robo-calls, 2) Ask any live person who commissioned the poll, have yet to get an answer and hang-up, 3) if they tell me who commissioned the poll I throw flak at the pollster.

- I have had more survey calls than ever before. Maybe a total of six, four were robo calls. Two were definite push polls, maybe three. All calls were to a land line. Only screened one that I did not take, a repeat call from one surveyor I hung up on for being a push poll. One seemed pointed at prosecutor office, all others combined house and senate. One earlier included county council questions.

In response to that last one, probably because it wasn't clear, candidate for Prosecuting Attorney Justin Kollar responded, "Just so everyone knows, my campaign has done no robocalling. ZERO."

That concurs with a report from Joan Conrow- one that quite a few others have independently confirmed for us- that described what could only be called a "push poll" and seemed to be from Kollar's opponent, incumbent Shaylene Iseri Carvalho.

Our favorite questions from that Iseri push poll was "do you read the blogs?" quite obviously because she's in trouble if they do.

Oh, and here's one response we got via email,

I've had about the same experience you have Andy, though far more than a half dozen, with many calls being from out of the area and automated, a few were actual live interview calls. Some are obviously partisan, others I could not tell who was sponsoring them. I screened one caller, Bob Marx, as noted on my caller ID, and they called back 4 times within a couple of hours. They have all been on my land line, apparently gotten from the phone book. They are a nuisance.

But though this is a small sampling and of course is not a "scientific poll" it is significant in that everyone who responded did so with frustration- oh, all right call it anger- over robo-calls. Remember they don't seem to object to getting polling calls, just that they were the recorded type.

One factor we haven’t heard mentioned is the relative difficulty of the whole "touch tone call" phenomena. Although most of us are used to it by now, no one likes it. Humorists and comedians have had a field day with them for more than a decade now.

Arguably, once you get past the usual desire to talk to a live person- and the fact that that option either doesn't seem to be on the list or is the last one of 10 choices (and is never "0")- the worst part is trying to find the right button on these telephones that no longer have a separate receiver and number pad, but instead have the keypad right next to where you talk and listen so that you have to keep taking the phone away from your head to push the right button and bringing it back to your ear... until your arms (or ear) starts to fall off.

And boy are you in trouble if you didn't catch the first couple of selections of what has become a long, bewildering set of choices. Are you really going to have the machine read the selections again? Or are you more likely to just push any button just to get the thing over with?

And then there's the regular poll that turns into a push poll. Although there's been some argument- usually from the people who run them- that they aren't push polls for one double-talking reason or another, everyone knows them when they hear them.

And they've heard quite a few this year.

Our favorite was one where, five minutes in, the "caller" asks a series of questions beginning with "Would you be more or less likely to vote for Mufi if you knew that he" followed by some horrendous anecdotal tale of apparent avarice or corruption. One question included the words "Pearl Harbor" and "Senator Inouye" and if you weren’t paying close attention you might get the impression that Mufi was at the controls of a Japanese Zero honing in on the 442nd.

Another negative of robo-calls is the impatience factor with a long list of choices. You just know that 10 minutes into a call that had asked for "five minutes of your time" people are starting to push "1" or "2" just to make the process go faster, thinking they already have 10 minutes invested so they don't want to hang up now, they just want it to be over.

Whether these things we do make sense or not isn't important- it's simply what we do without really thinking about it.

Then of course there's the one where the choices change and they type of question remains the same. After a list of four or five questions with the same two possible answers, all of a sudden you realize there are now seven different choices and you just pushed "1" only because that was the one you had been pushing on similar questions.

But the big question here is, assuming that robo-calls give skewed data, why would it favor Tulsi over Mufi?

Well, let's look at those specifics.

Mufi is not exactly the kind of candidate that makes people excited about his candidacy. First of all he's a conservative candidate in what has been arguably described as "the most liberal district in the country." And he's running in a Democratic primary where he started with a big lead without any real progressive oppositions.

The Democratic base had been craving a candidate they could get excited about. Former Senate Majority Leader Gary Hooser apparently chose not to run for the post he ran for some years back and many suspect it was because of the daunting task of raising enough money to take on the presumed favorite, Hannemann. And he had name recognition after also running for lt. governor last year whereas Gabbard has never run for statewide office before, just state representative and Honolulu county council.

Enter Tulsi. Then enter lots of money- much of it from the mainland- to publicize her status as a "born-again lefty."

Even though anywhere else he'd be a Republican, Mufi's support has come from the Democratic "machine" who are supporting him as the "establishment" candidate. Many have been supporting him simply because of name recognition.

But as Gabbard started to raise money and get her name out there she negated much of that and now has become the "go to" candidate who, although they were probably going to vote for Mufi before, has now excited those who were looking for a "progressive alternative."

And make no mistake about it- the Democratic progressives have become excited having long "got over" her former radical right wing stance on marriage rights and other issues.

Those are the people who would be more likely to stay on the phone to get their "choice" registered with the thought that polls numbers create the bandwagon effect.

No one's getting "excited" over the prospect of Congressman Hannemann... except maybe for those who expect a federal contract from the well "know pay-to-play" pol.

And don't forget about the "Mufi haters." Hannemann has tremendous negatives with high "dislike" numbers that he's generated over the years. He's been characterized, if not caricatured, as having a "bullying" style and has been accused of negative- even allegedly racist- campaigning, most recently in his run for governor where he lost to Neil Abercrombie two years ago.

Not too many Mufi Mavens are going to stay on the phone through a robo-call to register their support for him. As a matter of fact, we'd venture to say most of his supporters think it's "in the bag" already- don't forget, this poll wasn't out at the time.

All that could lead to a situation where those most likely to stay through a recorded call- even though they hate robo-calls- would be Gabbard supporters whereas the least likely would be Hannemann supporters.

And for what it's worth, it's a lot easier to hang up on a recording than a person, especially in the "Aloha State" so there's a natural skewing at the most basic level.

We really feel sorry for our friend Mike Levine whose job at Civil Beat was to try to explain how such an anomaly could possibly be valid. He actually did a good job of it and you come away thinking "well, it could happen."

But, upon reflection, no- it couldn't happen. A 30 point difference in two almost simultaneous polls cannot be reasoned away even with the old standby of "it's just snapshot."

When you look at the difference between the HNN/SA and CB polls, the main thing- maybe the only thing- that sticks out is the method of gathering the information. And if it's the method that's in question and one candidate is roundly not just disliked but actively hated then, as most critical thinkers and rational people will tell you, the likely answer is going to be the correct one- that something is kapakahi with the robo-call methodology.

If Tulsi Gabbard beats Mufi Hannemann by 20 points this Saturday we'll eat this keyboard. Because it would be easier to ingest a pound of plastic and metal than it would to swallow the validity of these robo-calls.

DEEP LACK OF BACKGROUND

DEEP LACK OF BACKGROUND: We've learned through painful experience that rock bottom is a place that doesn't exist- there's always a longer and sharper drill bit in the pit.

So it's really no surprise that after more than a dozen regimes at the local newspaper over the past three decades- each, with brief respites of competency, worse than the last- the level of professionalism has plumbed new depths.

The general slipshod nature of the news-less wonder has irritated and generally disgusted residents island-wide. But many- notably us- have saved their ultimate wrath for the alleged skills of alleged reporter Leo Azambuja, whose biggest point of confusion is apparently whether he should bend over or get down on his knees in his dealings with elected officials.

But until now we never had any unpublished insight into what kind of warped thinking goes into the utter lack of accountability that Leo has made his hallmark.

Now, in a series of emails between Azambuja and Prosecuting Attorney Shaylene Iseri-Carvalho obtained by reporter Joan Conrow, Azambuja demonstrates his main concern- not informing the public but kissing up to those he covers.

Through a process she describes as tantamount to "pulling impacted wisdom teeth", Conrow requested and finally recently received some heavily redacted emails she had requested from Iseri's office regarding the testimony before the county council of former Victim-Witness counselor Erin Wilson who, according to Conrow, has won an EEOC case after being fired by Iseri.

But the Azambuja emails were not among those released and rather were obtained by Conrow through a "leak" after Iseri refused to include them in a packet.

Conrow's work on the various and sundry scandals in Iseri's office during our recent health challenges has been nothing short of essential to a community in which Azambuja's reporting has been all but non-existent.

We aren't going to go into the whole sordid tale of "Victim-Witness-Gate" here today. You can read some of our earlier coverage here
and here.

Our tale today goes back to January 10, 2012, when Wilson brought a series of charges against Iseri to the attention of the Kaua`i County Council in a letter that is part of the packet released by Iseri's office (last document in pdf).

Azambuja, and therefore the local paper, had been silent on most of Iseri's alleged misdeeds in the matter until January 14, 2012, when an article finally appeared under the headline of "Former Victim counselor fires at OPA."

Azambuja's article essentially briefly quotes Wilson's charges one by one and then quotes Iseri's extensive and detailed answers. But instead of informing readers that Iseri's response was in an email, Azambuja referred to Iseri's responses using the term "she said" over and over, never even mentioning the fact that the responses had been in writing.

That type of thing is considered a major ethical violation these days by the top news outlets like Associated Press and the NY Times. Readers should be informed and certainly should not be lied to as to the form of a response from a news subject.

But content of the leaked email shows even bigger lapses of ethical judgment on Azambuja's part.

It was apparent that Iseri's responses had been in writing and so, apparently, Wilson asked Azambuja for Iseri's full letter.

What Azambuja did next perhaps explains why no one would mistake Azambuja for a trained professional journalist.

Here's the bizarre exchange between Azambuja and Iseri. Astoundingly Azambuja tells Iseri that rather than being considered the subject of his article he was treating her as a "source" and that as such, Iseri's letter is "protected" material... and then he actually asks her if it is okay to give the letter to Wilson.

1) From Azambuja to Iseri:

Re: response to erin wilson (sic) letter Hi Shay

I got a call from Erin Wilson today and she wanted a copy of your response. I explained to her that I'm not sure if it's a public document. Her testimony was a public document but your response is just a answer sent to me through an email. I told her I would act the same if the situation was reversed out of ethics and respect. She insisted she wanted a copy so I said I told her I would ask you for permission.

No one else has seen it and no one will without your authorization. That's how reporters should treat their sources no matter who they are.

But since I told her I would ask you here goes her request.

Do you authorize me to send Eric Wilson a copy of your email

Aloha, Leo

2) From Iseri to Azambuja:

No.

Shay

3) From Azambuja to Iseri:

Ha, not a problem Shay,

See you tomorrow at council.

Aloha,

Leo

4) From Iseri to Azambuja

Thanks for the sense of humor :-)

Shay

Iseri's response certainly was a pubic document. There are no exceptions for communications with reporters in HRS 92F 13-14. Emails to constituents are virtually always public.

But the real head-shaker here is that Azambuja treats her like a "source" when what she was was the "subject" of the story. This demonstrates an amazing lack of journalistic integrity showing a basic lack of understanding of the source-reporter and subject-reporter relationships.

Azambuja's contention to Iseri that "(Wilson's) testimony was a public document but your response is just a answer sent to me through an email" shows how little understanding he has, not just of journalistic ethics but of the state's open records laws.

Anything written by a government official that pertains to their work is a public document, with some exemptions for things like privacy, working drafts and personnel matters. The fact that a reporter who covers "government beat" lack that basic understanding of a law that is an integral part of his work may go a long way toward explaining the utter lack of substance of much of Azambuja's reporting.

As a matter of fact parenthetically we can't remember ever seeing Azambuja write about making an official record request whereas his predecessor in the job created a whole section at the paper's web site regarding "freedom of information" type requests. The last entry there is by that reporter, Michael Levine, who now works at CivilBeat.com

Next Azambuja wrote "I told (Wilson) I would act the same if the situation was reversed out of ethics and respect... No one else has seen it and no one will without your authorization. That's how reporters should treat their sources no matter who they are."

Ethics? Respect? Azambuja is so devoid of ethics it's hard to know where to begin. If Leo can't tell the difference between a public document and an off-the-record remark by a source he ought not be in the profession.

In asking Iseri whether it was okay to release her response- instead of just publishing it like any journalist would normally do- he has given up control of his reporting to someone who obviously has something to hide since she refused to release the rest.

Of course, many times a reporter will have a source-reporter relationship with people he or she covers. But according to well established ethical standards it must always be with the clear understanding that when asked for an on-the-record response that person is not to be treated as a source who can go back later and say "no- you can't use what I gave you 'on the record.'"

But regardless of whether Iseri occasionally acts as a source for Azambuja he is giving up his control over the news coverage he presents. A reporter should never take a written on-the-record response and then give the subject a chance to change or refuse to release it.

Given the email exchange, the "lie" to the readers as to the written nature of Iseri's response takes on an even bigger importance. It makes one wonder whether and how this chummy relationship has influenced Azambuja's coverage in the past.

Since there is no editor at the paper there is no one to take an objective look at Azambuja's relationships with those government officials he covers. That's one of the big functions of an editor- making sure that news isn't being manipulated by the source and that any source-reporter relationship primarily benefits the reporter, the paper and the reader, not the source.

Of course unpublished materials are the possession of the reporter, and under the Hawai`i "Reporters' Shield Law," for purposes of court proceeding, many reporters will withhold their unpublished notes. Reporters should not be seen as an arm of the constabulary.

But that isn't the situation here because there isn't any "source" to protect. Azambuja has lied to his readers and then, continuing the lie, withholds materials that any reporter would be more than glad to share under just about any circumstances. While in "ink and paper" news outlets space may be a factor in publishing a document such as Iseri's reply to Wilson's allegations, on-line publications routinely post full resource documents along with an article from which quotes are extracted.

It's apparent that Azambuja lied so that he wouldn't have to release Iseri's letter due to his self-delusional, mistaken impression that she was a source, not the subject of the story.

No reporter worth a damn would even consider withholding the Iseri letter. But in the schmoozy, "please like me" world of Azambuja, relationships with elected officials (especially, as we've reported in the past, with Council Chair Jay Furfaro who has all but led Leo around by a ring though his nose) is what seems to count. As a matter of fact it appears to be the determining factor in what news the island receives regarding government and politics.

This would be a fireable offense in any legitimate news organization. With the key words here being "legitimate news organization," don't expect anything to change any time soon at the local Kaua`i newspaper.

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

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

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

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

The opinion stated that:

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

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

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

The opinion itself says that:

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

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

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

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

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

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

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

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

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

“No,” he said.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SchMUSINGS

SchMUSINGS: It was actually a dark and stormy night. The rain was harder than the two feet in three days last weekend and hail was pelting the window so hard it woke us up. But we don't have dogs to walk, the electricity was off and the last time we saw the dawn- or even got up, got out of bed and went outside in the dark- was probably 30 years ago when seeing the sunrise was a result of an all-nighter. So we grabbed another blanket and some ear plugs, rolled over and went back to sleep.

Our apologies to Joan Conrow but since we're going to flit around and do it between games today it seems an appropriate way to commence.

First comes the news that former local Kaua`i newspaper editor Nathan Eagle, the other half of the dynamic duo, has landed a gig with his former cohort, joining ace reporter Mike Levine at Civil Beat.

No surprise on this end since whenever, against all odds, our local paper ends up mysteriously hiring someone even halfway competent, they eventually leave for a real publication. But congrats to CB and Nathan. We can only hope that maybe with two (count 'em two) ex-Kaua`i residents CB will treat Kaua`i like we exist.

Better news on the medical marijuana front. SB 2262 which "clarifies that the medical use of marijuana is considered to be consistent with the Pain Patients' Bill of Rights" has passed the senate and first reading in the house. Passage of the bill will mean that chronic pain patients will now have the right to receive medical marijuana in addition to all other appropriate medications.

That is coupled with the death of House Bill 1963 which was the horrendous effort courtesy of Assistant Director of the Department of Public Safety Keith Kamita- an effort also backed by Kaua`i Prosecutor Shaylene Iseri Carvalho- that would have actually removed chronic pain as a condition for which medical marijuana could be recommended. HB 1963 miraculously didn't get a hearing scheduled by the house Judiciary Committee.

Of course in the "now you see it now you don't" Hawai`i State Legislature, nothing is ever approved until it actually gets signed into law and nothing is ever-ever-ever really dead.

Then, from the "shocked-shocked" file, according to Civil Beat, Kaua`i State Senator Ron Kouchi has jumped on the ethically-bankrupt, legalized-bribery bandwagon by holding a Honolulu fundraiser during the legislative session. Last Night's soiree was a hundred-bucks-a-head affair held at the Mandalay restaurant.

Some states ban the practice of holding fund-raisers during a legislative session. But of course in catch-me-if-you-can-Hawai`i, legislators routinely cash in by holding these events in the hopes of scooping up some cash from those who have an interest in seeing the recipient's vote go a certain way on certain soon-to-be-considered bills. Since quid pro quo's are hard if not impossible to prove it's a practice that is looked upon with disgust by good governance and campaign reform mavens everywhere.

The fundraiser by-the-by is being organized by former Kaua`i Deputy County Attorney Harrison Kawate who worked under perennially county-government-employed former County Attorney Lani Nakazawa. We could go on with many more revolving door connections but the next game is starting soon.

Last but certainly not least is the latest dust up involving our always bafflingly buffoonish Prosecutor, the aforementioned reefer-madness adherent, Shaylene Iseri Carvalho.

Those who missed the real story behind the vague coverage in the local newspaper of the horse-abuse case will want to check in with the aforementioned Joan Conrow and read her coverage beginning last Friday.

Seems dear Shay actually threatened to use her prosecutorial discretion to drop the infamous animal cruelty case because one of the animal control officers at Kaua`i Human Society (KHS) got into a dust up with one of Shay's cousin over a complaint about the cousin's barking dogs and then his lack of dog licenses. Shay claimed the officer was trespassing and is a habitual liar whose testimony in the horse case would be unreliable, so Iseri wanted KHS to fire her.

It's a lot more juicy than that so read Joan's coverage.

But Iseri is back this week with more questionable behavior in a series of emails received by most of the attorneys on Kaua`i regarding the formation of a "Kaua'i Bar Bench Committee"- a "working group of attorneys [formed to] discuss and present issues to our judges [regarding] matters pertaining to judicial administration" according to one local attorney.

The group is being put together through the efforts of local attorney Rosa Flores who, after apparently putting in hours of volunteer time on behalf of the "Kaua`i Bar," innocently sent the following email confirming the "members" of the group, apparently "BCCing" almost all of the attorneys on Kaua`i

Subject: Re: KBA Bench Bar Committee Members

Hi Everyone,

I am very happy to announce the Bench Bar Committee Members. We are very fortunate to have had such an amazing amount of interest and support in the creation of this Committee.

Civil (Circuit Court): Dan Hempey
Collections (District Court): Tim Tobin
Landlord/Tenant, Self-Help Center, Legal Aid, Indigent Services: Emiko Meyers
Criminal Defense: June Ikemoto
Family Law: Caren Dennemeyer
Public Defenders: revolving
Prosecutors Office: revolving/unknown
County Attorneys: Justin Kollar
KBA President/Chair: Rosa Flores
KBA Vice-President/Vice-Chair: Shauna Cahill

The private attorneys on the Committee all wear many hats with various specialties, so we'll have a great overlap in coverage at all times. Please feel free to direct concerns, inquiries, comments, etc. that you would like to bring to the attention of our judges to the Committee member representing your particular area of interest. Everyone is also welcome to direct any inquiries to myself or Shauna Cahill anytime.

Committee Members, I will be in touch soon with all of you.

Thank you,
Rosa

This seemingly pleasant note, apparently following a lot of hard work on Flores' part, elicited a disturbing response from Iseri addressed Flores and CCed to around 75 local attorneys (with the original email in the thread) as well as the Kaua`i judges.

Subject: Re: KBA Bench Bar Committee Members

Aloha Rosa,

It would have been considerate of you to have contacted our office to inquire who would be the representative for the OPA because I would have told you clearly, that it would be me. Please put my name down as the representative of our office.

Shay

Okey-dokey. Apparently because the email was sent to the entire Kaua`i bar, Flores felt compelled to reply to the content and the tone of Iseri's response. She wrote:

Talk about a slap in the face for the best of intentions. Thank you for everyone else for their support in this endeavor, and to the volunteer representatives who took the initiative to contact me.

But Iseri wasn't done with Flores and, CCing the other, wrote back:

We did contact you. Your response is very unprofessional.

Unprofessional? Flores had had just about enough and felt she had to set the record straight. She wrote back saying:

As you very well know, I responded to you directly last week following your assertion that your agency should be represented, and in my response I agreed that your agency should be represented. No mention was made from you as to who would be the representative, and I do not have the time to hunt down attorneys from every possible section to see who is willing to attend the meetings. Yours was not the only agency which did not have name for their rep, but they were nonetheless indicated as being part of the committee.

If anyone else is offended that I did not put their names, please know that it was not intentional; my psychic mind-reading skills are not developed to the point at which I would like them to be. And I apologize for yet another unprofessional response from me.

Not having appeared rude and offensive enough Iseri first wrote:

It definitely is another unprofessional response.

finally adding

I also do not want to be a party to anymore unprofessional emails

Finally Flores realized who she was dealing with and ended the futile conversation by stating

Duly noted. Thank you and God Bless!

Isn't this an election year? Seems everyone knows that but Shaylene.

PRESUMPTUOUS ASSUMPTIONS

PRESUMPTUOUS ASSUMPTIONS: The outrage is palpable over the actions of Mayor Bernard Carvalho Jr. in placing ever popular Kaua`i Police Department (KPD) Chief Darryl Parry on leave pending investigation of a reported "hostile workplace" complaint by Officer Darla Abbatiello-Higa against Perry's two assistant Chiefs- Roy Asher and Ale Quibilan.

It fits the narrative- one we admit to perpetuating- of a pompous, politically-motivated. power-hungry mayor, yet again overstepping his authority and perhaps, as many have speculated, going after a potential 2014 political opponent with Perry's name being bandies about by many as the only person who could successfully challenge Carvalho for his job in two years.

But what if the narrative is wrong? What if there was misconduct on Perry's part in handling Abbatiello's complaint- actions that violated the county's own policies on how to handle a complaint?

One thing we can report is that, although Perry's first and only statement to the press- or at least on-the-record comment- stressed that he had "the utmost trust in the... decision-making" of Asher and Quibilan and that "they’re beyond reproach,” literally dozens of people will tell you that it is in fact Abbatiello that has a sterling reputation for being a "straight shooter" and beyond reproach.

And another dozen will tell you that they have no difficulty at all in believing that either Asher or Quibilan were the types who would think they are so "beyond reproach" that they could get away with harassing Abbatiello even after she had successfully sued the county for just such actions by other KPD officers and brass in the past.

It is certainly strange then that Perry's first reaction was to tell the local press he apparently fully supported his two assistants despite what had to be an extremely credible complaint from "Officer Darla" as she is affectionately known.

Remember that a hostile workplace complaint was filed internally by Abbatiello, reportedly against Asher, in October. That complaint seems to have been all but ignored and was apparently mishandled with, at minimum, no "separation" of Asher and Abbatiello as county policy calls for.

The county's 2010 edition of their "Policy Against Discrimination and Harassment" says that “(p)ending investigation, the investigator(s) shall take immediate and reasonable action to limit the work contact between employees where there has been a complaint of discrimination or harassment.”

Seemingly the fact that going up the chain of command in October- a chain that ends with Perry- met with no success led to Abbatiello's January 31 complaint, reportedly against Quibilan, being sent to both the police commission and the mayor.

While we're not privy to the contents of the complaint, the scenario that makes the most sense is that, after finding out about the complaint- and presumably its contents- Perry tried to stop the bleeding by placing Asher and Quibilan on leave. But he felt compelled to side with them against Abbatiello in a comment to the press even after being warned, according to the same article, not to comment on the matter.

So put yourself in Carvalho's place. Assuming the complaint included the fact that Perry had filed to act properly in the October complaint, the "beyond reproach" comment was too much for the politically-oriented Carvalho. But more importantly consider that the comment exacerbated the situation intimating that Officer Darla was a liar. Having the department head take sides against the complainant would be yet another violation of the sexual harassment guidelines.

And we're pretty sure Carvalho was reminded of all this by County Attorney Al Castillo who has also been under fire for allowing these sexual harassment suits to be mishandled and even ignored.

The fact that the complaint was addressed to the mayor left him in a place where, if he failed to act by putting Perry on leave- and not just allowing him to "work from home" as Perry claimed he had demanded- he would be doing what the county has done in similar sexual harassment complaints- at best just ignore them and worse put pressure on the complainant to drop the charges by allowing Perry's statement to stand as the county's only reaction to the complaint.

While we've gone back and forth on the subject of whether Carvalho had the authority to discipline the chief, it's a subject that has even received scrutiny in Honolulu with an exchange between blogger Ian Lind- who asserted Carvalho did not have the authority- and, in comments on the post, former local Kaua`i newspaper reporter and current "Civil Beat" correspondent Mike Levine.

Levine essentially said "not so fast" in pointing out that, while the authority might seem to be with the police commission which hires and fires the chief, it's a leap to say they are the only ones who can discipline the chief since there is no clear written authority to do so anywhere in the Kaua`i County Charter.

The most popular narrative on Perry in the community is that, after a recently reported 61 official grievances having been filed during the brief tenure of his predecessor KC Lum- who was essentially "quitted" for allowing "low morale" to spread through the department- Perry has been able to cut those grievances to a negligible level. But among those who thought Lum got a raw deal, the narrative is that the reason why there were so many grievances under Lum is that he was actually processing them by the book, encouraging an atmosphere where employees felt their complaints would actually be heard, causing the number to snowball not because of morale but because there was so much misconduct.

They say that the reason why the grievances have slowed to a trickle under Perry is that he has sought to "smooth things over" and either ignore the complaints until they went away or intervening and using his authority to intimidate complainants into withdrawing their complaints so as not to "make waves" and "rock the boat."

That, some say, has allowed some "bad apples" to remain in place and created a "don't bother to complain" atmosphere under Perry's permissive reign.

Is that the situation here? While we can speculate and even state that Perry's public handling of Abbatiello's latest complaint was in violation of the county's workplace policy- making them a violation of the law since the law requires employers to have a policy and stick to it- we have no direct evidence other than the public statements to believe one way or the other.

But if others, as they have in almost unanimity, want to speculate that Hizzonah is once again on the wrong end of an issue of process, they would be wise to consider that there is another narrative that, while it doesn't fit the observable past, may just have the quality of the proverbial broken clock- one that right at least twice a day.

ON AGAIN, OFF AGAIN

ON AGAIN, OFF AGAIN: We've been merciless with our local newspaper, especially since the departure of "Big Mike" Levine who is making quite the name for himself covering the Honolulu City Council for the online news source Civil Beat with the same rabid no-holds-barred coverage he provided for the Kaua`i community.

But what made the era remarkable- especially considering the seemingly determined efforts of the owners and publishers to dumb down the content and bend over for the Chamber of Commerce crowd- was Levine's tag-team partner Editor Nathan Eagle who, despite the orders from above, managed to shine even with a usually semi-literate, untalented group of underlings.

And now it's Eagle's turn to exit as we've learned with a one-way ticket to South America where he plans to both work and play, "hopefully more of the latter."

Eagle, whose last day will be Wednesday, has no idea who his replacement will be but we fear the worst given that the search for a new editor has been ongoing without success.

The facts that the salaries are traditionally of the starvation variety at the paper and that the job has been advertised locally don't instill much hope that anything resembling professionalism will be a trait of Eagle's replacement.

For the uninitiated, there is a "circuit" where many new J-school grads jump on board, travel the country, spend a couple-o-few years working, first at small papers and then gradually larger ones, trying to make their mark and move up the ladder while honing their skills. Many do it because they need the experience- others because they like the lifestyle.

And separate from the chaff, some of the highest quality semolina has come from that job mill.

The thing is that a Hawai`i assignment usually attracts those who will work for less, and many times that is reflected in their work. The Anthony Sommers, Dennis Wilkens, and the Levines and Eagles of the world are the exception rather than the rule. They generally arrive sans family or attachments and, although they sometimes intend to stay a while, they usually eventually depart for bigger and better things, disgusted with the way they've been treated both financially and as to the freedom to report what they actually see without a filter imposed from above.

The Andy Gross episode of a few years back is typical. The then fairly newly-hired Gross started nosing around the sale and operation of the then newly-created electrical "co-op" and eventually had his copy squelched by then weekend-Editor Paul Curtis, a former close associate of Gregg Gardiner, the "founder" of KIUC. With Gardiner at the helm and Curtis writing the copy at the notorious "The Kaua`i Times" they worked to, among other ventures, overturn the Nukoli`i vote, support the Hanalei boaters and champion various other efforts that took a crap on the people of Kaua`i.

So don't expect much when the new editor is named, especially with Publisher and CofC Board Member Randy Kozerski in charge. Kozerski fired the last business editor for perceived disregard of Chamber news and then hired the next one with instructions to pump up the CofC with more and more "positive" coverage.

So get ready to meet the news boss. We can only hope they're the same as the old boss.

GATHER YE TORCHES AND PITCHFORKS WHILE YE MAY

GATHER YE TORCHES AND PITCHFORKS WHILE YE MAY: Though we haven't viewed it yet, reports are that the Kaua`i County Council got quite the last minute earful at yesterday's meeting on a recommendation for a state legislative bill that would require labeling of foods containing Genetically Modified Organisms (GMO).

The Maui council-generated measure was a part of the Hawai`i State Association of Counties (HSAC) legislative package that all four counties must approve for the recommendations to be sent to the 2012 legislature for consideration and, although the package has been on the council's agenda for more than a month, it was the first discussion of the proposal.

Previously the council had concentrated only on their own recommendation for a bill to close loopholes in the solar hot water mandate for new construction which had undergone changes before being sent, along with the rest of the package, to the full council from committee a week ago, seemingly destined for final disposition yesterday.

But a last minute barrage of emails and Facebook postings by GMO-Free Kaua`i turned out the anti-GMO troops and, according to a Facebook posting by GMO-Free 's Jeri Di Pietro, the council re-referred the package back to committee to be debated next Wednesday.

But while the measure is still alive on Kaua`i, according to Big Mike Levine of Civil Beat, it may face the ax on O`ahu where the Honolulu City Council removed the measure from the package in committee on Tuesday and sent it to the full council without the bill that would require GMO products to say so on thhe labels.

The good news though is that Honolulu didn't reject it because they didn't agree with the bill but because, according to Levine, even though "Safety, Economic Development and Government Affairs Committee Chair Tulsi Gabbard said it's a matter of people knowing what they're feeding their families," she "eventually recommended that the GMO measure be removed, saying it's an important issue that needs a full airing that can't happen now under the tight timeline for the legislative package."

But even though the bill may not get the recommendation of HSAC this year, it's important that the precautionary principle be stressed next week to the council which needs an education on the issue to counter the various farm bureaus' silly contention that because "no one has gotten sick or died" (failing to add "yet") from GMOs, they're perfectly safe and therefore, for some reason, people shouldn't be told what's in their food.

According to Wikipedia, the Precautionary Principle states that "if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on those taking the action."

Of course the various individual island farm bureaus are populated by Pioneer and Sygenta sycophants who never seem to be able to answer the question of how people would know they were getting sick or otherwise suffering harm from GMO products if they don't know they're eating them.

If you care about the issue, either write the council at counciltestimony@kauai.gov or better still, show up next Wednesday at 9 a.m. and tell them in person.

It may be an uphill fight with big campaign cash and yelps of "jobs, jobs, jobs for the westside" from the industry, but now that the FDA has apparently permitted individual jurisdictions to pass their own labeling laws, the fight has to begin somewhere and with its corn seed folks spreading their Frankenfood pollen all over Waimea, Kaua`i is as good a place as any to start.

DO YOU SMELL THAT?

DO YOU SMELL THAT?: They say that justice delayed is justice denied but what about news? Well, they also ask, who needs yesterday's papers?

While it's widely acknowledged that our local newspaper is, um, shall we say, "content challenged," perhaps their worst feature is the lack of timely reporting of government doings unless it's a spoon-fed and regurgitated press release from the county's public information officer.

This "when we get around to it" style of journalism is not just an affront to those who have a need to be informed but makes it particularly difficult to get involved in government when, say, there's an article on Tuesday about a bill that passed out of a council committee at the previous Wednesday's meeting and is due for final approval the following day- leaving less than 24 hours to arrange to be there to give testimony.

But while today's Kaua`i newspaper is devoid of coverage of yesterday's meeting, real journalism is happening- not just the next day but item by item in real time- not far away.

And wouldn’t you know it? It's none other than our old friend Micheal Levine, late of the Kaua`i press corps who has taken up residence at Honolulu Hale and is using 21st century technology to do his reporting for "Civil Beat".

A look at his daily "Inside Honolulu" column shows no less than 9 blurbs in covering and posting the actions of the Honolulu City Council at various times throughout the day, with the headings:

10:36 a.m. The 'Million-Dollar Baby Toe'
10:51 a.m. Godbey Confirmed As Corp Counsel
11:19 Council Sends Ag Property Tax Bill To Mayor
12:26 p.m. Council To Defer Laie Hotel Vote
12:49 p.m. 'You Got Shafted, I Got Shafted'
3:06 p.m. Laie Hotel Deferred One Month
3:54 p.m. Mililani Senior Development Gets OK
4:22 p.m. $1 Million Settlement Approved
5:38 Council Advances Campaign Sign Rules

Why even the lowly Hawai`i (Island) Tribune Herald has an article today about a controversial bill taken up at their council's Wednesday meeting.

But it’s a rare occurrence when we get coverage of Wednesday's meeting by Friday with the usual routine being a Saturday or Sunday entry... usually a muddled attempt by a certain story-telling-challenged individual- whose name rhymes with Slazumbuja- apparently trying to make sense of what he saw.

It gets worse by the day. For today's news of a $215,000 settlement of a sexual harassment suit filed by PMRF firefighters against ITT one had to turn to the pay-walled Honolulu Star-Advertiser.

And for news of the scandalous allegations of misconduct on the part of the "old" Kaua`i Independent Foodbank- made by the "new" Hawai`i Foodbank- you had to turn to Bob Jones' last two columns in "Midweek." Or you could check out Joan Conrow's "heads up" on the story where the news that the reason for the non-coverage may just be that the publisher of the local paper sits on the "old" foodbank's board of directors.

All we got today was a confusing account of some plea agreement- from who knows how long ago- in what appeared to be a dispute between Kilauea neighbors that resulted in threats.

At least the local paper does serve one constituency- the fishing community is happy to have something in which to wrap their catch. Either way, if you leave your catch lying around for a few days the fact that it stinks is bound to be evident.

--------

Note: While the local newspaper remains silent on their naming of victims of crime as we discussed on Monday, we did receive the following comment purported to be from Prosecuting Attorney Shaylene Iseri Carvalho:

I have no idea how the paper's new police beat reporter Tom LaVenture got the list, although I suspect it was from the indictment, which by law, is public record.

As you correctly noted, the victims' names did not appear on any official county press release page or the prosecuting attorney's page at the county web site. It is for those very reasons that you state below:

"It's bad enough to list the victim of a burglary, letting potential crooks know who might might be making themselves a good target for another burglary. But to list the name of an abuse victim and potentially subject the person to the unwarranted taunts, ridicule and shame that many times unfortunately accompany such situations, is just plain professional misconduct"

that the Office of the Prosecuting Attorney(OPA) has NEVER released victims' names to be published.

Thank you for addressing this issue, as the OPA strongly seeks to protect against the revictimization of victims.

Mahalo,

Shaylene Iseri-Carvalho

Kauai Prosecuting Attorney

THE AGE OF NEFARIOUS

THE AGE OF NEFARIOUS: Sometimes watching a Kaua`i County Council meeting is like reading a redacted document that leaves in only the articles, conjunctions and punctuation. You know something must be going on but damn if you know what... or more to the point, why.

Often it seems like well orchestrated kabuki where you missed an act or two, especially when they're all on the same page of the script but only they have seen it.

Why it's as if they all discussed what was going to happen before the cameras rolled. But that would be an illegal violation of the state Sunshine Law and they'd never do that, would they?

Well not only would they, this council has actually written violations into their rules by assuring that members who want to introduce bills share them with both Chair Jay Furfaro- who insisted on the procedure- and the chair of the appropriate committee where the bill will be sent.

Only two members of a board are permitted to discuss anything not on an agenda and even they they can't commit to a vote.

But while Furfaro is infamous for not "getting" the prohibition on "serial one-on-one communications" and doesn't seem to care who knows it, there's a bit more sophistication to similar violations over in Honolulu.

Civil Beat's Mike Levine- who cut his Hawai`i teeth busting the Kaua`i Council's inability to follow simple open meeting laws- smelled a rat yesterday and wrote:

Hours before soon-to-be-former Honolulu City Council Chair Nestor Garcia announced his plan to step down, numerous council members seemed to be well aware of the impending change.

How did those members learn about the plan if the Hawaii Sunshine Law requires six days of advance notice before any public meeting with more than two members of the City Council?

But unlike on Kaua`i where councilmembers have a "so what" attitude toward sunshine violation, their Honolulu brethren have not only pre-decided the matter but apparently pre-decided how to cover up their pre-decision.

Levine first describes a similar Honolulu council reorganization case six years ago when the Office of Information Practices (OIP) first banned those serial one-on-one communications and then describes what happened when he started asking questions.

The opinion was sent to (then-City Council Chair-and current Hawaii senator-Donovan) Dela Cruz, but the eight other council members were copied. One of them was Garcia. Just two others remain on the council today: Ann Kobayashi and Romy Cachola.

Kobayashi and Cachola each expressed support for a reorganization Wednesday morning, telling Civil Beat they'd likely vote in favor of installing Ernie Martin as council chair. But both were careful to avoid revealing how they'd come to be aware of the coup.

"That's always the question, and it's part of why a lot of us say we don't know exactly what's going on," Kobayashi told Civil Beat. "We do it by circulating a resolution, and if you don't support it, you don't sign onto it. It's not like over at the Legislature where those guys can go into a closed room and have a meeting."

Unless someone steps forward to volunteer that they violated the Sunshine Law — or unless there's a paper trail of a series of written or electronic one-on-one communications — it'll be hard to prove a violation of the Sunshine Law took place.

Garcia's insistence that the shake-up was his idea and his idea alone gives his colleagues a cover story.

Despite the attempts to be careful not to violate the Sunshine Law, the question remains whether a violation took place.

Ikaika Anderson, who would become council vice chair if the resolution is approved as written, told Civil Beat Wednesday he had a conversation with Garcia about the reorganization.

"He's comfortable with moving forward," Anderson said. "Nestor Garcia has told me that he's committed to seeing the council move forward in the best interest of the taxpayers of Honolulu."

At his press conference, Garcia in turn said he'd had a conversation with Martin about 30 minutes earlier.

Those two discussions alone could constitute a violation of the law — oddly enough, by the man who's being ousted and not any of the possible conspirators.

It's hard to believe that would be enough to put the proposal in jeopardy if the majority of the council is ready for a change in leadership, but it might mean the public isn't going to get any further explanation for the ouster from members at the council's next public meeting, where the vote will be held to install new leadership.

The "circulation" of a bill or resolution before it's on the agenda is a favorite trick on Kaua`i as we saw when Furfaro spent almost a year battling with OIP over a letter and proposed bill addressed to all the other councilmembers which, he claims, was never actually sent, although it was posted on-line.

While OIP cleared Furfaro of the charges because they couldn't show he actually sent the letter and bill, they didn't comment on the fact that it appeared on-line where other councilmembers could presumably see it.

The problem is that in the age of the internet, anyone can post anything on-line- even do it anonymously- even a bill or resolution, avoiding any possibility of a paper trial to prove a Sunshine law violation.

The OIP has proposed that the legislature take a new look at the Sunshine Law in the age of the internet and while some loopholes like this need closing it's anyone's guess what the lege will do once they open the law for review.

But whatever happens you can bet that the Kaua`i Council won't be letting the sunshine in anytime soon... and won't really care who knows it.

A TERRIBLE THING TO MIND

A TERRIBLE THING TO MIND: The so-called “landfill crisis” that has persisted for literally decades on Kaua`i has nothing on Honolulu’s where the waste problem has literally overflowed at their landfill at Waimanalo Gulch, specifically the medical waste that flowed freely into the ocean during the storms last week.

The questions over whether, as the city and county claims, that medical waste has been made harmless was first broached by Civil Beat’s Michael Levine and Adrienne LaFrance last week when they first questioned the safety of the syringes with attached needles and intact vials of blood and urine saying:

Health officials said the medical waste that ended up in the ocean didn't pose any serious health threat. Yet one of the strange aspects of this story is that no single agency can claim responsibility for oversight of medical waste. In fact, three local entities each point to the other as responsible.

But after the Honolulu City Council held hearings yesterday, while the Honolulu Advertiser ran articles more or less dismissive of the testimony of medical professionals maintaining that, as one headline blared, “Proper procedure followed in disposing of medical waste,” today in LaFrance’s follow-up she wrote that:

Department of Health officials said they received documents that prove the medical waste was non-infectious, but Civil Beat's requests — to the Health Department, city officials and the landfill operator — to view those documents have not been returned. Since last week, Waste Management operator Joe Whelan has refused repeated requests for comment...

"No one can say with 100 percent certainty that the medical waste that went into the ocean has all been sanitized," (City Council member Tulsi Gabbard) Tamayo said. "I still don't have a clear sense of where the oversight is. We are putting many different types of medical waste and special waste into the landfill and there doesn't seem to be a clear line of oversight as far as how often to inspect the facilities, who is responsible for it, or a clear chain of responsibility."

But, as we wrote to Levine when the first article appeared, a simple examination of the process that officials claim to use to “sterilize” the materials and a basic understanding of simple microbiology shows that the waste that spilled onto the beach and into the ocean would necessarily have remained as contaminated and infections as it was when taken from the patient.

It all comes down to the use of what’s called an autoclave to sterilize closed vials of blood and urine, something that most medical professionals know doesn’t cut it.

While officials have claimed that the use of an autoclave to sterilize the waste made it sterile, autoclaves work not just by steam heat but, by using pressure- and no amount of pressure on a closed, sealed vial- as some photos have shown was collected- will guarantee sterilization.

According to Wikipedia an autoclave works by “subjecting (materials) to high pressure saturated steam at 121 °C or more, typically for 15–20 minutes depending on the size of the load and the contents.”

But that’s for items directly exposed to the steam heat under pressure. And a closed glass vial- one, as a matter of fact, designed to be impervious to outside elements so as to make sure the contents are not contaminated before testing- will maintain the contents with any pathogens intact.


According to the Advertiser article linked above:

(t)he state Department of Health’s “administrative rules require that before disposal, infectious wastes may be incinerated, sterilized or chemically disinfected on site in accordance with U.S. Centers for Disease Control recommendations, Environmental Protection Agency guidelines, U.S. Occupational Safety and Health Administration standards and the nonprofit Clinical and Laboratory Standards Institute's waste management guidelines.

So far no one has really challenged the specifics of whether the waste was properly sterilized (using chemical or incineration are the other two methods of sterilizing waste) and officials seem to think if they stonewall enough it will go away.

Because while this problem is on a “big city “scale, the actions of officials in Honolulu seem to be based on the way “3D” Kaua`i usually addresses problems like this- delay, deflect and deny- and soon people will move on to your next bit of incompetence.

LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: During the decade or so we regularly attended council meetings there were generally three sets of attendees.

First were governmental apparatchiks who slept in the back, if possible under the air conditioner, until called on by the council.

Then there were the great unwashed- the clueless who wandered in because they heard something was up or they took a wrong turn at the elections office.

Finally there were the regulars- aka nitpickers- and the reporters who generally sat around acting like the unruly kids in the back or the classroom kibitzing, whispering, giggling, passing notes, chewing gum and generally making a mockery of the whole thing.

But they always had something that the others two groups lacked- a copy of the agenda.

The administration people didn’t really need one. They know what they’d been summoned for.

But for the great uninitiated novices sometime we’d grab a stack and walk amongst them calling “Program- getcha program heah. Can’t tell your bill without a program- program heah.”

The truth is that even with a “program” many were often left shaking their heads, unable to follow the meeting and find their issue before it whisked by, by which time it was too late and they were left asking “wha-wha-wha just happened?”

For those who try to follow the proceedings on TV it’s even worse. As “Esatiene” wrote today in the comment section of a totally unrelated article in the local newspaper:

Watching the HOIKE Channel a few days ago i was saddened to see our elected officals skim over financial "bills" and passing them as fast as possible w/ no mention how the money will be earmaked. Sewage and Wailua (county workers' private) Golf Course, was a combined $300,000 of taxpayors money. The county council looked like a table of thieves in a den distributing stolen loot (all sic).

And it’s no wonder. Rather than actually having to read many measures the council rules state:

RULE NO. 3-OFFICERS AND THEIR DUTIES

(c) County Clerk. It shall be the duty of the County Clerk or an authorized representative, in addition to those duties prescribed by law:

(1) To read bills, resolutions, and other matters to the Council, if so required (emphasis added);

And for bills and resolutions the rules say

RULE NO. 10-GENERAL PROVISIONS REGARDING BILLS, RESOLUTIONS, MOTIONS AND AMENDMENTS

(h) Full oral readings of bills and resolutions are hereby waived and may be by title and/or number only unless a full reading is requested by any of the members present (empasis added).

As Esatiene noted many bills go through their four required appearances- going through the first reading, the public hearing, the committee meeting and the final reading- and are passed with nary a word other than the perfunctory reading by the clerk of the minimalist information already on the agenda.

Many times those notices seem to be intentionally sketchy so as not to peak anyone’s interest.

And it’s worse for “communications” especially those that don’t require approval. They aren’t even read but rather listed, by communication number, and “received” for the record, never to be heard- or heard from- again.

Not only aren’t they discussed, anyone watching the proceedings doesn’t even know they exist.

And while some are fairly innocuous, many contain vital information that is being communicated to the council- and presumably the public- including all sorts of administration reports, audits and other information.

It was only through people questioning the “reports” from the personnel department- ones listed for receipt by number only with a bunch of other communications- that the practice of downgrading budgeted positions so as to allow administration-favored applicants to get a skilled job (and to be taught “on the job”) came to light a couple of years ago... although it has seemingly died for lack of interest by the council since then.

It’s all too convenient for councilmembers who are seeking political cover to controversial subjects.

Even when the subject isn’t contentious it gives the impression that something is being hidden. Councilmembers who wonder why the public doesn’t trust them and is always calling them “secretive” and even “corrupt” need look no further that this practice to figure out at least one thing they can do about it.

As for bills and resolutions most of the times the actual “meat” of the bill or reason for the reso are short and sweet. But most of the time, unless a councilmember or a member of the public says something they fly on by under the radar unexplained and many times undebated.

So why do we mention it?

Because when the new council sub-committee recently designated to look at the council rules meets, one of the only things suggested so far is to hide things further.

Not only is there no plan to change the rules to require that they at least give a public explanation as to what each measure is about, they have proposed that those communication designated for “receipt” and even some routine “approvals” be moved to what is being called a “consense calendar” where, in one fell swoop, without even acknowledgment of each communication number as is now the practice, they will be dispatched at the beginning of the meeting.

For those attending the meetings now it’s hard enough if they want to speak on one of these “matters for receipt.”

They must listen carefully to the clerk mumble the number and jump up and frantically wave their hand so the chair sees them and then, to the dirty looks from councilmembers angry that they must endure three extra minutes at the meeting, sheepishly apologize for interrupting the “zoom agenda” with their testimony.

We’ll be looking at some other rules over the next few weeks as the sub-committee meetings get underway. But we can only hope that the review of the rules isn’t used as an excuse to pare down the public’s participation in the process- a matter that seems to get plenty of lip service but is thrown under the bus when the rubber meets the road.


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UPDATE/CORRECTION: In our January 6 post regarding President Obama’s Kailua vacation rental and a story in the on-line newspaper “Civil Beat” about how the agreement with the owner apparently violated the City and County of Honolulu’s ban on rentals for less than 30 days, we suggested that it might also violate the state ban on vacation rentals in the state conservation district.

While, as this map (pdf) of Kaua`i state districting shows, much of the coastal area on Kaua`i is in the state “conservation” district, that is not so in Honolulu where, as this map (pdf) shows, much of the coast is districted “urban.

This screen shot of a google map along side the relevant section of the state district boundary map- with point “A” on the google map indicating the 57-A Kailuana Place address where the president stayed- shows that the house in question is in the urban, not the conservation district.

Thanks to Civil Beat’s Mike Levine for setting us straight and providing the screen shot and map links.

We regret any confusion resulting from our incorrect presumption.

AND THE WALLS CAME TUMBLIN’ DOWN

AND THE WALLS CAME TUMBLIN’ DOWN: It was a good news/really bad news moment when the Honolulu-based, on-line news venture Civil Beat launched a while back.

Many were excited over the prospect of whatever each envisioned was needed until we learned that it was going to be, in the words of Disappeared News’ Larry Geller, a “gated community” and would cost $240 a year to enter.

Worse yet, for Kaua`i at least, it meant losing ace reporter Big Mike Levine who moved on to become one of their “reporter-hosts”.

But we heard from Mike yesterday that there are going to be “some changes to civilbeat.com” and that “(e)verything we've been working on is now free for occasional readers.”

No telling what “occasional readers” means but we were able to read stories yesterday and again today.

We wonder what those who paid for a year are thinking... probably much the same thing we did when we got to Woodstock after having paid 18, 1969 dollars for tickets and found the fences on the ground.

Many have wondered how they were doing, especially since they’ve been tight-lipped about how many subscribers they have. And things might have gone from bad to worse recently with the blow back against CEO, Publisher and Co-founder Pierre Omidyar’s other venture, “Pay Pals,” after they banned Wikileaks from using the service- causing at least one notable cancelled subscription.

But really the prime subject of Mike’s letter was to point us to an article by one of his fellow “host-reporters” Adrienne LaFrance headlined “Obama's Winter White House an Illegal Rental”

According to her story:

Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.

Although the owner claims he got around the law by leaving a 30-day window between rentals, the

explanation is one that's commonly offered, but that still represents an illegal renting practice...

"Maybe it's that the people are circumventing the law or thinking, 'Oh, I'll only rent it to one person in a (30-day) period," said Andrew Malahoff, a spokesman for Honolulu City Council member Ikaika Anderson, who chairs the city's Zoning Committee. "They say, 'Even though they're only going to stay there for seven days, I'll charge them for (30) days, and prorate that.' But as far as we know, that is also not legal. You will not rent for a period of less than 30 days. That's what's in the land-use ordinance. It's not just about multiple rental parties, it's the period of days."

It’s hard to see how, if the owner just rented it out for 30 days and the vacationer decided to stay there for only two weeks it could be illegal. But then again we’re not really familiar with all of the planning and zoning laws in Honolulu.

But one thing we are familiar with that LaFrance is apparently unaware of- something that occurred to us years ago when we first heard of the President’s beach house rental- is the fact that the Department of Land and Natural Resources’ (DLNR) Division of Conservation and Resource Enforcement (DOCARE) has cracked down on vacation rentals in the state conservation district (CD) sending “cease and desist” letters to those operation in Wainiha on the North Shore of Kaua`i and in Kane`ohe on O`ahu- not far from the president’s rental.

According to an April 2007 article in the local Kaua`i newspaper

The state Department of Land and Natural Resources has issued notices to 16 property owners in Ha‘ena to halt alleged unauthorized use of multi-million-dollar homes as vacation rentals.

Most of the 16 homes are on makai, or on the ocean side, of Kuhio Highway, from the YMCA’s Camp Naue to Limahuli Stream. Most are clustered around Makua Beach, also known as Tunnels.

A condition in the state Conservation District Use Application, which a property owner secures before building in the state’s conservation area, stipulates a single-family home cannot be used for rental or any other commercial purposes, Peter Young, chairman of the Board of Land and Natural Resources, said in a March 23 letter to alleged violators.

In one case, the cease-and-desist order could force the owner to sell a property worth millions, and may be the scenario facing other supposed violators as well, said Gary Stice, a Kaneohe, O`ahu resident who received one of the letters.

At the time of the letters many of the operators shut down their rentals but according to at least one anti-vacation rental activist many have reopened and DOCARE has apparently dropped the ball.

It also brings up the question of whether the house has a Shoreline Management Area (SMA) permit- which generally include use descriptions- for a vacation rental. But that would also be a City and County of Honolulu issue.

So far the report hasn’t gotten any press either statewide or nationally. But whenever the president is involved, stories including the word “illegal” tend to grow virally.

And the vacation rental issue could certainly use a little viral publicity considering the disease they cause in otherwise quiet residential neighborhoods.

BRASS TACKS

BRASS TACKS: Much like eggs eaten three days ago making their reappearance in an unanticipated belch, local newspaper reporter Leo Azambuja is back and filing disjointed “day late and a dollar short” stories, not the least of which is Sunday’s attempt to make up for saying that Councilpersons Tim Bynum and JoAnn Yukimura "gave no reason” for asking that County Clerk Peter Nakamura not be reappointed at the inaugural meeting.

But in light of the elephant in the room- Nakamura’s harassment of former Deputy County Attorney Margaret Hanson which apparently cost the county $250,000 in settling an EEOC case- one line in the story speaks volumes:

Repeated attempts to reach Nakamura for comment failed prior to press time. Phone messages and a message left in person at the council services office in Nawiliwili Friday were not returned.

Though we’ve been attacked for reporting the story no one else will touch, the dearth of denials goes a long way toward corroboration.
Although the actual documents are “confidential” the reports continue to roll in from people who tell of the workplace harassment of Hanson after she and Nakamura broke off their “relationship”... although many-even most- say that the allegation made by some of physical violence on Nakamura’s part may be incorrect.

The quarter-million-dollar settlement by the county is apparently what’s at the unspoken heart of the two memos sent out by Bynum and Yukimura in an attempt to start a professional search for a county clerk.

Another quote in the newspaper story from Yukimura seems to confirm something that doesn’t meet the eye is up:

(Yukimura) also said she didn’t have access to the county’s legal or human-resources advice and counsel.

“The county attorney (Al Castillo) opined that I could not have access to the information or counsel until I became an officer of the county by being sworn in,” she said.

Because of the short time to review those documents, Yukimura said she did not have enough time to perform the required due diligence before voting for the clerk.

The obvious question this raises is why are the other four councilmembers so apparently unconcerned?

We’ll get to that analysis another day but suffice to say Nakamura has shown his ability to protect councilmembers from themselves through selective release of documents and other manipulations from which each, as charter members of “the club,” intend to benefit or have benefited.

Today, since no one else has, we’re going to concentrate on the serious charges made in Bynum’s memo going over our experiences with Nakamura and county procedures and laws in that context.

Bynum’s letter (in full) is in italics.

After long and serious consideration of the issues, I have decided that I will not be voting for Peter Nakamura to be reappointed as County Clerk this term. At a prior meeting I recommended that the Council appoint one of our capable current staff as an interim County Clerk and conduct an open search for the best-qualified candidate available to lead Council Services. Had we gone this route, Mr. Nakamura could have applied as a candidate in the search process.

While I recognize Mr. Nakamura’s talents, contributions and strong work ethic, there are, in my opinion, unresolved issues. The following are among those that led to my decision.

UIPA

The Uniform Information Practices Act is State law and requires that an agency provide a response to requests for public documents within ten business days. The Clerk has repeatedly failed to respond as required by law in the required time frame and, in a number of instances, has completely ignored the request and not responded at all. For example, a UIPA request for documents was made by Council members on May 26, 2009 and no response was received until July 8, 2009, and then only after follow-up memos from the Council members and an admonition from the County Attorney.

We’ve submitted no less than a dozen official documents requests that were fully ignored by Nakamura. While council services staff are usually forthcoming with regular public documents many times they are not under instructions from Nakamura.

At first we were unaware of the process for dealing with being ignored. Eventually we found out that the government official in charge of the record has 10 days by law to respond to a written request.

But if the official decides to ignore you your only option is to go to the toothless tiger of the Offices of Information Practices (OIP), which will usually fire off a letter to the denying official. Then, when that’s ignored another letter... and another... and another... until everyone just gives up.

Even when he does finally respond Nakamura has become a master of stonewalling giving excuse after excuse often dragging out cases for years.

Bynum then asks a question we asked a few months back- what ever happened to documents the local newspaper’s ace reporter Mike Levine requested which were similarly ignored during his Levine’s all-too-short stint here and, of course, once he left.

As another example, The Garden Island on their web site (http://thegardenisland.com/app/sunshine ) lists records requests made to various County departments, all of which were responded to within the timeline required by State law, except for those requests filed with the County Clerk. The requests made to Council Services were all ignored and not responded to at all. Other members of the public have informed me that their UIPA request for documents have gone unanswered.

That last sentence the understatement of the year.

Records

The Kaua`i County Charter requires the Clerk to “take charge of, safely keep and dispose of all books, papers and records which may properly be filed in his office and keep in separate files all ordinances, resolutions and regulations and cumulative indices of the same, or exact copies thereof, enacted or adopted by the council.”

One of the Clerk’s important responsibilities is to keep the County Code up-to-date. One can do a Google search of any Hawai`i county, except Kaua`i, and easily find an updated code. Not only can the public not find the Kaua`i County Code online, an up-to-date codified version has not been available in any form since 2006.

If we had a nickel for every time we’ve written about this, it wouldn’t amount to as much as we would have if we had one for every time we’ve had to tell someone shocked neophyte that there is not only no on-line version of our local county code- the laws of the island- but that it’s virtually impossible to get hard copies of them at the clerks office, since you have to ask for them by number and there’s no way to find out the number since there’s no available index.

Ordinances passed since 2006 are simply shoved loose in the back of the file so the actual pre-2006 code is incorrect unless it’s cross-referenced with every “loose” ordinance

We’re not surprised at all that there hasn’t been a codified version available since 2006, especially since there wasn’t even a codified version of the county charter available for many years until it was recently compiled, apparently by the county attorney’s office since the clerk- who is responsible for doing it- couldn’t seem to get it together.

If you requested a copy of the charter since 2002 the amendments were - yup - shoved in loose at the end, often unnumbered and in a different font.

When Council members sought electronic minutes of Council meetings, the Clerk informed Council members in writing that he “had difficulty locating electronic copies of Council meeting minutes” and that “extensive agency efforts have been required to search for and prepare the records for copying.” This response and other instances related to key Council records have raised alarms about the integrity of Council records and led to the submission to the Clerk of the following written inquiry in July 2009: “Is it the case then that our key public documents exist only on paper in the Historic County building? Is it the case that our office documents are not backed up on the County network? Is it the case that we are not availing ourselves of the backup capabilities provided by the County IT department? Does this not leave an unacceptable risk that these key public documents could be lost completely?” There has been, to this date, no response to this written inquiry and my concerns about the integrity of County records remain.

It’s simply unbelievable that this kind of thing has been going on. Yet it’s also our experience and that of many others we’ve spoken to. It’s apparently why there was such blowback when it became time to put all this stuff on-line last summer.

What Bynum leaves out is that according to Eric Knutzen, the county’s IT director, he’s been ready to go, literally for years, saying it’s a matter of will on the part of the clerk and council.

That’s why the mutual admiration society of Nakamura and former Chair Kaipo Asing functioned so well- each had an interest in keeping the public in the dark.

But as to the Nakamura salary issues rather than reading the newspaper version or other recent charicterizations, you may want to read what Bynum actually wrote to understand why some were calling it illegally done.

Salary Issues

The County Charter requires that department head salaries be determined by the Salary Commission. The County Clerk is a Department head. By Salary Commission resolution, requirements for department head raises include: 1) “employee’s completed performance evaluation evidencing that the appointee has met or exceeds job requirements” and 2) “the appointing authority’s recommendation on whether a proposed increase should be granted”.

Although neither criterion was met, the County Clerk received a pay raise in December 2009.

Other department heads and the mayor did not receive a salary increase in December 2009 due to economic conditions. This has led to a situation where the clerk’s current salary at $114,848.00 is higher than that of the Mayor’s.

The key here is that, while the salary commission okays a raise it only authorizes a range of salary. The actual salary is awarded based on the recommendation of the appointing authority, based on their evaluation.

But with the council-clerk relationship the council serves two different functions. First, they have a bite at the apple of the salary commission’s recommendation which they can either reject or, through inaction, implicitly approve without really approving.

But then they are also the “appointing authority” so they are responsible for going through the evaluation process to set the actual salary. That’s what never happened, yet Nakamura got his raise- one to the highest level of the “range” set by the commission- anyway.

Then there’s the kicker.

Over the last several years, without the knowledge of the Council body, the Clerk accepted and was paid unused vacation time. This is contrary to the County’s policy and practice with other County employees. Unused vacation time pay paid to the clerk is in the neighborhood of $50,000.00. The funds were apparently available without a separate appropriation because of salary surpluses in the Council Services budget resulting from vacancies. (Positions have remained unfilled for extended periods of time. Example: In the FY06-07 budget, a clerk typist position was added by a unanimous vote of the Council. Despite repeated Council requests and promises from the Clerk made in each budget cycle, the position remains unfilled four years later.)

We know many county employees who would love to have gotten this kind of deal. Many have also accumulated a huge bundle of vacation time and were forced to take it or lose it. One way around it has been to “use” it right before they retire so in essence the last “X” number of weeks- or, more usually, months- of employment are actually vacations.

But we’ve never heard of a county employee being allowed to just take the money and run. And certainly not without authorization of their boss... in this case, the council

Bynum’s letter concludes:

The Garden Island opined in November of this year, “When the council goes to organize itself, we also hope the members do their due diligence to ensure the current county clerk and the individuals holding other key positions are still the most appropriate choices for those jobs.”

This position I am taking and observations I have made are a result of my process of due diligence and the belief that this course of action is in the best interest of the County and its citizens.

Finally, since there’s been so much written about Yukimura’s “motion” to conduct an executive search, we will post her memo below in full.

PROPOSAL RE SELECTION OF THE COUNTY CLERK

TO: Kaua`i County Councilmembers-elect

FROM: Councilmember-elect JoAnn A. Yukimura

DATE: November 22, 2010

Motion: That the Council secure the assistance of an Executive Search firm and with such assistance, create and follow an executive search process for selecting the County Clerk that clearly defines the leadership and management skills, knowledge and qualities required and preferred for the position of County Clerk, solicits applications and evaluates the candidates for ultimate selection by the Council.

Background: By job description, the Clerk is equivalent of a Department Head. Department Heads constitute the highest level of administration in the County, next to the Mayor and Managing Director. Department heads are extremely important to the quality of operations and performance of any corporation, whether private or public. If our goal as County leaders is to support the “highest standards of government performance and service,” we have a responsibility to select the best possible candidate for the position of County Clerk.

Rationale:

1. An executive search is a business “best practice” that will increase the chances of finding the best qualified person. It will minimize the “politics” and focus instead on qualifications.

2. As an open, competitive process, it will provide the best choices available.

3. It will increase accountability.

4. By adopting such a process, the Council will demonstrate its commitment to the highest standards of government performance and service.

5. The Council will be using a process used successfully by the Police Commission; it produced a Police Chief, who, most people agree, is a capable leader and manager.

6. It will help to professionalize the County, which means it could enable the County to achieve some of the goals of a County Manager system within the existing “strong mayor” form of government.

7. An executive search process will be fair to the existing County Clerk. The executive search will not remove him from his position because his current position ends at noon on December 1, 2010. The process will allow him to apply for the new position, and if he chooses to apply he will arguably have an advantage by having served in previous years. If he is selected as the best of the candidates, the process will still be worthwhile in bringing greater clarity between the Council and the Clerk as to expectations, goals and the evaluation process to be followed. There will also likely be a greater appreciation and awareness of the qualifications and gifts that the present County Clerk has to offer because of the process he would have gone through.