BUT WAS IT BASMATI OR LOCAL-KINE STICKY?

BUT WAS IT BASMATI OR LOCAL-KINE STICKY?: Only on Kauai could we have a scandal that revolves around whether having a rice-cooker in the wrong room constitutes a zoning violation.

That's because "Rice-cooker-gate" is a direct result of what happens when a dysfunctional planning department and an ego-maniacal prosecutor collude to "bring down" a councilmember.

The matter- into which we've been delving for the past year or so- has finally spilled over into the local newspaper with an article yesterday that scratched the surface of the prosecution of Councilmember Tim Bynum by Prosecuting Attorney Shaylene Iseri-Carvalho, after the release of various documents and a back and forth between Iseri and Bynum on the matter.

Despite Iseri's denial of any ill-feeling between the two, the feud between her and Bynum goes back to their days together on the council when she and Councilmember Mel Rapozo were allies and sided with then-Chair Kaipo Asing in the infamous days when Bynum and Asing butted heads with all of them over Asing's paternalistic leadership of the council involving issues of process, staffing, introduction of measures and other issues.

Iseri was then elected prosecuting attorney in 2008.

According to a complaint form we've obtained dated 3/26/10 Bynum was alleged to have an "illegal dwelling multi family" unit at his home which is on agriculturally zoned land.

The problem is that, under "Complainer/Requester" the form notes "*wants to remain anonymous!" (the asterisk and exclamation marks are written on the form)

The complaint has two initializations, one for "inspector" and another for "assigned by" but who they actually are is not readily apparent. However what is known is that, according to Bynum's press release that followed an email from Iseri to current Council Chair Jay Furfaro sent just before last Wednesday's council meeting where Iseri appeared on a budgetary matter related to the Victim Witness program:

Apparently, sometime prior to April 2010 a trespasser entered onto my property, looked into my windows and observed a rice cooker and a refrigerator in the family room.

That someone is apparently Planning Inspector Sheilah Miyake who was CCed in a series of memos between Iseri and then Planning Director Ian Costa and has been identified by numerous reliable sources close to the investigation as being the "trespasser."

On April 7, 2010, Iseri wrote to Costa:

We received information to corroborate an anonymous complaint dated March 2.6, 2010 that was sent to the Planning Department and our office, that Councilmember Tim Bynum was renting out his house, or a portion thereof. Can you let me know if renting out a portion of his residence is ill~gal given his land status, and what ordinance/statute would he be violating by doing so? Please advise.

Costa wrote back, CCing Miyake, saying

Sorry for delay Shaylene.

The CZO really doesn't prohibit renting portions of structures. Even the issue of "lock-outs" is not addressed.

The CZO does not dictate where locks are permitted and not permitted (thank goodness!). The issue would be whether the area, in question creates a "multi-family" dwelling. What was permitted is a "single-family" dwelling based on "one kitchen". If a second kitchen (area used for the preparation of food) is present, then a violation would exist for an illegal "multi-family" dwelling unit.

I understand Sheila has been assisting and monitoring .......let me know if we can be of further assistance.

Despite Iseri's previous contention that actions on the complaint was initiated by the planning department alone, her memo indicates that now she says the complaint was sent to both planning and the prosecutor's office. She also seems to say that she and Miyake worked together to get the "rice cooker" information that was arguably obtained illegally via Miyake's trespassing.

In a comment on our November 5, 2010 report on Bynum's denial of allgations, Iseri wrote"

Mr. Parx,

Your statements are completely erroneous. I was never involved in the investigation of Tim Bynum's violations. The entire investigation was conducted by the Planning Department.

The memo seems to indicate that it was Iseri who initiated the action in conjunction with Miyake and without Director Costa's prior involvement. It also shows that Costa essentially confirms what people have been told at planning previous to this incident- that a "second kitchen" is what makes it illegal. And, as everyone is told, it is a stove that constituted what a "kitchen" was.

But Iseri wasn't to be stopped by the prior definition of a kitchen by planning. Apparently when Miyake told her she saw a "rice cooker" on the counter when she sneaked onto Bynum's property without his permission- or even asking- Iseri saw her opening and decided that, despite what planning had said ever since the CZO was established in the early 70's, now any device- presumably even a toaster or coffee maker- is a "kitchen."

The most hilarious part of all this is Iseri's continuing contention that there is no feud or even animosity between her and Bynum. Anyone who ever watched those council sessions where she butted heads with Bynum would have no doubt she despises Bynum.

So as to who made the complaint? Well we can't say for sure but for some reason former Chair Kaipo Asing has taken an unusual interest in Bynum's cases, showing up to Bynum's court dates and last week's council meeting where, if Bynum had not recused himself, sparks between Iseri and Bynum would surely have flown.

Was it Asing? Was it Iseri's ally Mel Rapozo whose animosity toward Bynum is thinly, if at all, disguised? Some seem to think the latter is the case but so far Rapozo's name hasn't come up in any documents.

The answer is apparently another question- does it really matter which of them it was? To think that there was no collusion in the matter would strain credulity.

Another question is what will happen when these people are put under oath. We understand that new Planning Director Mike Dahilig is privy to the whole story and even if the others were thinking of perjuring themselves, his testimony would surely be straightforward, the thinking being that Dahilig, a former deputy county attorney, isn't going to lie under oath for anyone.

A final question is why Iseri's office is even prosecuting the case and why she hasn't recused herself and her office by letting the state attorney general's office take it over. It would seem, given the history between Iseri and Bynum, recusal would be a no brainer.

Also, Iseri's email was stamped with a big "Confidential" across the top and the original did not contain any redactions. But under the Sunshine law she has no apparent right to say an email to the council is confidential. All emails to councilmembers are considered public documents.

We'll leave it there for today. Below are the full texts of Iseri's letter asking for Bynum's recusal last Wednesday and Bynum's "press release" that followed this weekend. It should be noted that there may be misprints in Iseri's email. First of all, names of those involved are redacted and second we had to use optical character recognition software to get it in "text" form. There may be redactions that are not noted so the sentences may seem disjointed. But you'll get the gist of it.

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Iseri's letter to Council Chair Jay Furfaro CCed to all councilmembers except Bynum.

January 19, 2011

TO: Council Chair Jay Furfaro

FR: Prosecuting Attorney Shaylene Iseri-Carvalho

RE: Conflict Notice Regarding Councilmember Timothy Bynum

This communication serves as a notice to the Council regarding a conflict of interest between Councilmember Timothy Bynum and the Office of the Prosecuting Attorney. This conflict arises from several incidents involving Councilmember Bynum and employees in our office, as well as the pending criminal case filed by our Office against Councilmember Bynum in November 2011.

1. Bynum's Inappropriate Confrontation Of Deputy Prosecuting (redacted)

On September 28, 2011, Councilmember Timothy Bynum attended a court proceeding with his son, David Bynum, at the 5th Judicial Circuit Courthouse in Lihu`e. After the hearing, Mr. Bynum stood outside the courtroom door in the public hallway and confronted Deputy Prosecuting Attorney (redacted) regarding David's case. As (redacted) exited the courtroom, Mr. Bynum stated directly to (redacted) "Do you think justice was done? This was because [expletive] Shaylene doesn't like me and is out to get me." (Redacted) was standing nearby and also witnessed the confrontation.

According to the Kaua`i County Charter section 3.07(D)

The council may, upon an affirmative vote of at least two-thirds of its entire membership, suspend without pay for not more than one month any member for disorderly or contemptuous behavior in its presence. The presiding officer or the council by a majority vote may expel any other person who is guilty of disorderly, contemptuous or improper conduct at any meeting.

While this section deals with disorderly and contemptuous conduct that occurs in the presence of the Council, it is also instructive as to the appropriate conduct expected from Councilmembers in their dealings with county employees as well as the general public.

Additionally, Section 3.18 of the Kaua`i County Charter states:

Except for the purpose of investigative inquiries under Section 3.17, the council or its members, in dealing with county employees, or with county officers who are subjected to the direction and supervision of the mayor, shall deal solely through the mayor. and neither the council nor its members shall give orders to any such employee or officer either publicly or privately. Any willful violation of the provisions of this section by a member of the council shall be sufficient grounds for an action for his removal from office.

Clearly, Councilmember Bynum did not handle this situation appropriately. If Mr. Bynum had questions or concerns about the case, the appropriate course of action would have been to communicate those to the elected Department Head, which is me, rather than confronting one of our Deputies, who, in fact, was not assigned to handling the case. This confrontation clearly illustrates the undue bias Mr. Bynum harbors toward both me personally, as well as the Office of the Prosecuting Attorney. As such, Mr. Bynum must recuse himself from any matter before the Council involving the Office of the Prosecuting Attorney.

2. Bynum's inappropriate confrontation of (redacted)

Before coming to work at the OPA (redacted) was employed by (redacted) as (redacted). She applied to the OPA as a (redacted) and was offered the job in (redacted) . After accepting the position (redacted), who had turned in her 2 week notice (redacted) was confronted by Councilmember Bynum in her office. Bynum stated that he was concerned because it was well known that he and Shaylene did not 'get along' and adamantly believed that the only reason Shaylene hired her was to 'get back at him.' These statements and allegations continued for a prolonged period, leaving (redacted) to feel uncomfortable and offended.

Councilmember Bynum's inappropriate confrontation with (redacted) regarding her employment at the OPA demonstrates Mr. Bynum's continued undue bias toward me and my office. This bias and proclivity to engage in inappropriate conduct with OPA employees further establishes the need to have Mr. Bynum precluded from participating in any matters relating to the operations of the OPA.

3. Bynum's Pending Criminal Case

On November 9, 2011, the OPA filed a criminal complaint in the District Court of the Fifth Circuit against Timothy Bynum, alleging 4 counts of violations of the Kaua`i County Code. Each Count is a misdemeanor offense, punishable by up to one year in jail and a $2,000.000 fine for each. This means that if convicted, Bynum could face up to 4 total years imprisonment and $8,000.00 in fines. There have already been two motion hearings on the case, in which Mr. Bynum has been represented by a private attorney. At each hearing, First Deputy Prosecutor Jake Delaplane represented the State and made all arguments on behalf of the State. Councilmember Bynum's criminal case clearly establishes a conflict with the OPA. He has a clear financial interest in the operations of the OPA, as he would directly benefit if the OPA's operations were negatively impacted by any action of the Council. By virtue of being a criminal defendant, he has a vested interest in ensuring that the OPA not operate at peak efficiency. In accordance with Article )0( of the Kaua`i County Charter, this financial interest clearly prohibits Bynum from participating in any matter relating to the OPA that comes before the Council. Further, because Councilmember Bynum is represented by an attorney in his criminal case, our office is prohibited from having direct contact with Bynum without his attorney present; as such contact would violate Bynum's 6th Amendment Right to Counsel and could result in dismissal of his case. Bynum's paranoid belief that the actions taken by our office were calculated personal attacks against him is without any merit and is completely baseless. The criminal case against his son was investigated by the Kaua`i Police Department and referred to our office for prosecution. The case initiated against Councilmember Bynum was investigated by the Planning Department and referred to our office for criminal prosecution. The contact with (redacted) was solely initiated by Councilmember Bynum. Her decision to apply to the OPA and our decision to hire her was purely based on (redacted) exceptional experience and qualifications.

For the above stated reasons, Councilmember Bynum has a clear conflict of interest with the Office of the Prosecuting Attorney and should not be allowed to participate in any Council proceedings involving the OPA. It is our hope that the Council will address this situation in a timely and appropriate manner. Feel free to contact me with any questions regarding this matter.

SHAYLENE ISERI-CARVALHO
PROSECUTING ATTORNEY

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Bynum's Press Release

I was elected to legislate for the county and to provide oversight of various government agencies and offices. Among these is the Office of the Prosecuting Attorney (OPA).

However, the OPA has recently filed criminal zoning violations against me and I must now defend those in Court. Since I was charged, the County Prosecutor has now cited those same charges as a basis for having me recused from all legislative oversight over her office. Out of an over abundance of caution I agreed to recuse myself from the January 19th meeting.

Likewise, I believe that it would be appropriate for the Kauai Prosecuting Attorney to be recused from prosecuting my case and allow the Attorney General's office to properly evaluate this case. I believe that this would be the best assurance of a fair proceeding and a fair process that is certain to be governed by the rule of law.

The Prosecuting Attorney states in a Jan 19 letter that her criminal prosecution is not personal, and was a routine matter “investigated by the Planning Department and referred to our office for criminal prosecution.” What I have learned is that as early as April 2010, the Prosecuting Attorney asked the Planning Director in an email for a legal basis on which to prosecute me. I am attaching a copy of emails between the Prosecuting Attorney and then-Planning Department Head Ian Costa. These e-mails establish that the Prosecuting Attorney was involved in the matter before Planning even investigated the “anonymous complaint” and that this was not just a routine Planning Department investigation.

In her email, the Prosecutor refers to an "anonymous" complaint. Apparently, sometime prior to April 2010 a trespasser entered onto my property, looked into my windows and observed a rice cooker and a refrigerator in the family room.

I hope that through the court-process I will be able to ascertain the identity of this trespasser and learn how this person was able to anonymously commence a criminal investigation - especially when I have previously been assured by the Planning Department that my house was properly permitted. I also hope to find out who, if anyone in government authorized sending someone to peer into the windows of my family home. I believe that the trespasser should be prosecuted, but thus far his or her identity appears to have been protected. The documents provided to my defense attorney so far only state that he or she "wishes to remain anonymous".

Finally, just minutes prior to the January 19, 2012 Special Council Meeting, the Prosecuting Attorney sent a letter marked confidential demanding my recusal. The letter was sent to all Council Members except for me. I was allowed to read the letter in the presence of the County Attorneys but I was not given a copy.

I am now informed that the Prosecuting Attorney intends to release to the public this letter she stamped “confidential.” The letter misrepresents conversations I had with two individuals I have long respected and have had a cordial professional relationship with for years.

The intended subject matter of the January 19 Council Meeting was a valid examination of concerns raised by a number of citizens regarding the Victim Witness program, the reported backlog of cases, finance issues and the high turnover / vacancies of Deputies. Council member Joann Yukimura instigated the request. Anyone who follows the Council knows that this type of oversight agenda item is common and a legitimate Council responsibility.

Additional information regarding the alleged zoning violation:

In 2005, at times there were 4 generations of my family (7 people total) living in my home (my father, myself and my wife, my son, my daughter, our grandson and his mother). We decided to do an addition to our home. We wanted to create a living space that was integrated. We constructed two bedrooms, a bathroom and family room. The addition also included a ramp because my elderly father was increasingly having difficulty negotiating the steps to the front door much less the stairs to the second story where the existing bedrooms were located.

When the drawings were done I took them to the County Planning department and the Building division for informal review. I was told everything was fine as long as no stove was installed. Subsequently we submitted the plans to the County for formal review and approval. The plans were approved after being circulated to and approved by various departments including the Planning department.

We hired a contractor and built according to the plans. The County sent inspectors during construction including a final inspection after which we were issued a certificate of occupancy. The addition is exactly as it was when “final inspection” occurred; nothing has been added or deleted. No installed cooking facilities have ever existed in the addition. Our home has one kitchen; every person that has ever resided in our home has used the one kitchen.

IT'S NEWS TO ME

IT'S NEWS TO ME: It only took a decade or so, which anywhere else might be seen as a snail's pace. But here on Kaua`i when it "only" takes a dozen to get the government follow the law your first thought is that it's miraculous that they complied at all.

When a long list of nominees for various boards and commissions were scheduled for interviews a week ago Tuesday we had little hope of seeing them on television. After all, it took over five year of complaining on our part to even get the Office of Information Practices (OIP) to tell the council to end the practice of holding the interviews in secret executive sessions and then another few years for the paternalistic then-Council Chair, Kaipo Asing, to actually comply.

But it took still a few more years before the council allowed the interviews to be video-recorded claiming they didn't have the money to do so- even though they paid to caption and televise up to an hour a week of those "grip and grin" certificates and awards that they present to auntie and uncle every time they sneeze and to every sports team that came in anywhere but last in Honolulu... especially around election time.

Now, after some dribs and drabs of individual interviews interspersed with council meetings over the last year or so, the yearly appointments- and more importantly reappointments- of a slew of board and commission members was actually televised last week.

And guess what? It actually produced news of sorts, although you wouldn't know it from perusing the local newspaper, probably because you had to actually be paying attention to both the interviews and the way government works around here to find it.

The biggest news came from outspoken Planning Commissioner Jay Kimura who has ascended to chair this year. Kimura is the one who, when you watch the planning commission meetings, is continually shaking his head in disbelief over the fact that transient vacation rentals (TVRs) can be put on agricultural lands in the first place, denouncing the way the permits for all types of TVRs are approved willy-nilly regardless of compliance with the law and generally kvetching about the lack of enforcement of TVR regulations for both existing permit holders and those for who have been rejected but continue to operate.

The news is that anyone who was wondering at the time exactly what happened in executive session when former Planning Director Ian Costa left his post under investigation by the FBI can wonder no more whether he resigned or was actually fired by the planning commission.

Mayor Bernard Carvalho Jr. was certainly circumspect about the circumstances, probably because he has since "hired" Costa- or at least told his former campaign manager Director of the Department of Parks and Recreation Lenny Rapozo to hire Costa- as a deputy director under Rapozo.

During Kimura's questioning Councilmember Tim Bynum directly asked Kimura "during your tenure the planning director changed. That was a decision of the board, correct?"

Kimura simply answered "Yes."

Bynum continued the questioning as to whether Kimura was happy with the new Director, former Deputy County Attorney Mike Dahilig, to which Kimura replied that he would "rather keep my opinion to myself," even though his disgust with Dahilig's lack of enforcement and lax attitude toward TVR permitting in general hasn't been very well disguised at planning commission meetings.

But now we do know that Costa was fired- as if there was really any doubt until now in the minds of any but the most rabid of Carvalho sycophants. Oh- that and, according to Rapozo, the "fact" that state attorney general is "going over the approved 'TVRs on ag land' permits"... whatever that means.

Another bit of major news is that Board and Commission Director John Isobe has "retired" and been replaced by former state House Representative from 1992-1993, Paula Ishii Morikami (D-12th District) who is apparently now the latest politically-connected apparatchik to join the Carvalho administration.

Isobe's "retirement" has yet to be formally announced but it came up during the interview with former District Court Judge Calvin Morishige who has been nominated to be on the Kaua`i Board of Ethics.

One bit of news of sorts that Morishige made was to say, in response to questions from Councilmember Mel Rapozo, that his opinion was that county attorneys who advise boards and commissions actually do just that and only that- advise them.

"Their opinion is only their opinion- the decision is up to the board," he told the council.

Now anywhere else in the world this would not be news. But under the Carvalho administration, County Attorney Al Castillo’s opinions are to be followed blindly by all. And if they are not, board and commission members have been threatened with the withholding of county representation should they be sued for their official actions, according to a lengthy discourse on the subject by Rapozo.

This has been especially true with the Ethics Board where commissioners have actually battled deputy county attorneys to get them to change their written opinion rather than make a ruling that would treat their advise as, well, advice as opposed to a dictum.

There was probably more news but it was really hard to stay awake through all the fawning and phoney praise for both the nominees and Carvalho for his wonderful choices... alternating with the occasional grinning through gritted teeth by both councilmembers and appointees, holding back what they really wanted to say.

It kind of makes you wonder what "news" might have come up behind closed doors for all those years where they didn't have to watch what they were saying. But then again current councilmembers are new at this "conducting the public’s' business in public" stuff, especially when it comes to having to interact with those who have seen the corruption of the Carvalho administration up close and personal and then allowing them to discuss it on TV.

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(Sorry for any flubs today- our editor's computer is down.)

MEET THE NEW BOSS

MEET THE NEW BOSS: The Charter Commission continues its work without much public oversight except when they bring their work before the county council to ask permission to do it- a very strange obsession since the council can put charter amendments on the ballot all on their lonesome.

But it hasn't escaped our attention that Mayor Bernard Carvalho has been on a crusade to use the commission to consolidate power in the mayor's office.

Using his crony Boards and Commissions chief John Isobe as a cudgel, he has sought amendments to the charter that would take away the appointing power of the few boards and commissions that appoint their respective department directors, such as the Police, Fire, Planning and Civil Service Commissions.

But we've gotta ask why he bothers because he and his predecessors been able to evade the law so successfully for decades.

Case in point? Yesterday's thus far unreported Planning Commission (PC) vote to remove the term "Interim" from the title of now permanent Planning Director (PD) Michael Dahilig.

As many may remember when former PD Ian Costa went up in flames amidst an FBI investigation, Dahilig was whisked from the county attorney's office and dispatched to the top planning spot by Carvalho amidst much hoopla over the usurping of the commission's prerogative to appoint their own director.

Of course the same thing had happened when Costa himself was installed over a decade ago when former Mayor Maryanne Kusaka installed then acting County Engineer Costa with only a pro-forma vote by the commission.

This time however many thought the opportunity to initiate a search for a real live professional with experience might be in store, maybe even one that would be a good fit for the island's controlled growth paradigm, as demanded by voters, who approved the charter amendment to put some teeth into the general plan growth numbers in 2008.

But a search of the last six months of PC agendas shows only regular executive sessions to evaluate Dahilig and nothing whatsoever dealing with any search.

So it shouldn’t have been any surprise when this week's PC meeting agenda came out and the first item of business was the "(a)ppointment of the Planning Director pursuant to Section 14.04 of the Charter of the County of Kaua'i."

And since there had been no search, no one could be surprised when Carvalho's hand picked PD Dahilig was permanently installed in the planning department’s top job.

Well, there has never, in our memory, been a planning director actually appointed by the PC without having been hand selected by the mayor, so why start now?