NOW YOU DON'T SEE IT, NOW YOU STILL DON'T SEE IT

NOW YOU DON'T SEE IT, NOW YOU STILL DON'T SEE IT: We realize that criticizing the council today may be one of those "no good deeds goes unpunished" type of things. After all, it only took a decade and half to get the paperwork for council agenda items posted on-line after the promise had been made to get it done "tout suite."


So today we have an excuse for our usual "but we digress" style.

Legendary local Kaua`i newspaper Editor Jean Holmes tells the story of how, when the paper's founder Charlie Fern hired her from the Howard County Times in Maryland, he assigned her to cover the Kaua`i County Council.

"When I walked in they practically had to put their pants on" she used to say of the colorful, equally legendary (albeit for different reasons) cast of council characters who had never seen a woman in the council chambers, much less a "lady reporter."

When we first attended a meeting in the pre-television days, not much had changed except that a different cast of characters were perturbed, this time at a haole hippie being in their midst.

Proceedings came to a screeching halt but after a bit of "who the heck are you and what are you here for?" then-County Clerk "Bunji" Shimomura (are we even close to the correct name and or spelling of either?) informed them, much to their astonishment, that indeed they had to allow members of the public- even this apparent wild man- to observe them in action.

But TV changed things. Dragged kicking and screaming into the 1990's, public access TV put council proceedings under the public microscope, albeit in fits and starts with officials finding ways to delay and indeed at times suspend cablecasts until almost 2000.

Around the same time, something called the "internet" was burgeoning and it took a mammoth effort to just get the weekly agendas posted at "kauai.com"- the domain purchased by then-Mayor Maryanne Kusaka, despite the fact that governments already had "dot gov" domains reserved exclusively for them.

By then, as a regular, we had gotten used to the cat and mouse game that interested members of the public, like the notorious "nitpickers"- and even reporters- were required to play, especially when it came to obtaining the aforementioned paperwork. The most annoying flaming hoop was the one called "how can you ask for it by name if you don't know it exists?". The OIP wasn't exactly accessible those days- even with a long distance call there was no "attorney of the day"- so we got pretty much got only what they wanted us to get.

But then suddenly, with the ascension of Ron Kouchi to Council Chair and Republican Kusaka in the mayor’s seat, revealing administration scandals- from, gem-gate to red-Chrysler-gate- became Kouchi's favorite game and the paperwork- especially the juicy stuff- began flowing on a more regular basis.

But there was a catch- although by the early 2000's the council's agendas began to be posted on-line the associated paperwork was available only at Council Services desk. Of course the game in those days was that agendas for the then-Thursday meetings came out as or after the doors to Council Services were locked for the weekend- with the required six days notice for meetings conveniently reduced to three beginning Monday at 9 a.m.

Than meant the already small window got smaller still and required a trip to Lihu`e to boot.

So, with the turn of the century began our quixotic century quest to get that paperwork posted on-line. But so too started the paternalistic reign of Chair Kaipo "it's not public information until I say it's public information... and the OIP can 'bite me'" Asing.

You get the idea. For ten years councilmembers promised posting of documents would begin post haste. Eventually though, not only Asing but even those self-same councilmembers- now having seen who was politically buttering their Portuguese Sweet Bread- were suddenly silent on the issue.

Without those documents by the way, the community would probably never know about the slew of sexual harassment cases which we only found out about because the suit was included- perhaps accidentally- in the "packet." Previous to that we had to be handed papers cloak and dagger style by anonymous sources- one time literally under a toilet stall.

Of course the main problem now is that although the paperwork is available- not at the council's page of the county web site but through "Granicus," a huge mainland company that is contracted to produce and "webcast" the meetings- it is not available in a "text" format but as a "scanned" file.


That means that someone trying to use any of the paperwork to testify- or for any reason like informing others- cannot simply "lift" the text from the file but must re-type it.

It is also probably a violation of the Americans With Disabilities Act (ADA) because the "voice recognition" software used by the visually-challenged will not work with a "picture" of the piece of paper- which is what is essentially what is being used by the county, which apparently supplies Granicus with the files.

Of course some of the paperwork either wasn't created in text or doesn't lend itself to text such as maps or graphs or the like. But there is what is called "Optical Recognition" software which is widely used these days to convert a scanned picture of the words into a "text file." Although errors may be contained in the conversion, going back and comparing it with the original is certainly preferable having to "key in" a 5,000 word document or even a 100-word quote.

Of course we complain because we do this all the time- take documents and post them in text. We have a friend (yes- we do have a few despite being a recovering asshole-a-holic) who has been very generous with his/her time in doing conversions for us. But the county could do this once, for everybody... after all they say they've had to create a new full-time position just to post the already available paperwork.

Scanning and posting around 25- 50 pages apparently takes 40 hours a week. Guess they had to look for an available slug because there wasn't a competent tortoise or snail on the civil service list (sorry- nothing personal, just personnel).

We just discovered the availability of the files today so we don't know yet when the documents will be posted each week (why do we suspect they won't be available when the agenda is ready- usually on Thursdays- but rather as late as they can get away with?.. maybe because we've been dealing with these guys for almost 30 years).

We're not sure who is responsible for the postings- given that "new" Council Chair Jay Furfaro has been on the job for 15 months now without change and brand new County Clerk Ricky Watenabe has been on the job for only about a month or so, we suspect that it is Ricky's doing... especially since Rick has been one of the only senior staffers in council services who has not just made himself available but actually never lied through his teeth to us or evaded our questions and/or requests, lo these decades.

Anyway there's still some stuff missing like committee reports, some communications, legal documents (a real biggie as to digging out news) and even a resolution and a bill for second reading (meaning "ready for final passage") as well as of course whatever is available for executive sessions- another document treasure trove which, many times, is where court filings of lawsuits may be available since they are public records.

So yes- it is a "what have you done for me lately" type of thing. Maybe we should make like the local newspaper... sit down, shut up and say "thanks for the crumbs massah"

All we can say is "put your pants on ladies and gentlemen of the council, there are woman and kids- and wildly rabid reporters- watching.

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.

THE RULING CLASS

THE RULING CLASS: We've been fairly merciless with Council Chair Jay Furfaro and his foibles and blunders, not to mention his tendency toward chest-beating blowhardism.

His insistence that his business experience in the tourism industry can be translated and applied to just about any situation has resulted in some real head-scratchers and outright bad results.

But recently, out of the blue, Furfaro has suddenly rectified one of the most blatant violations of the state Sunshine Law- one which, despite our constant whining, sniveling and even letters to the Office of Information Practices (OIP) asking them to intercede, has never been enforced on Kaua`i.

In the late 90's we made it our mission to drag the council- often kicking and screaming- as well as other boards and commissions, into compliance with the simplest of sunshine law provisions.

We joined with then Honolulu Star Bulletin Kaua`i Bureau Chief Anthony Sommer- author of KPD Blue (see left rail)- to request the listing of each specific executive session (ES) on council agendas. At the time, council chairs had always just announced that "we're going into executive session now so please clear the room."

Although the move was at first resisted by then Council Chair Ron Kouchi, it was first instituted by the Police Commission when then new Chair Michael Ching and new Vice Chair Carol Furtado acquiesced, saying they couldn’t believe it had never been done before.

Well soon Kouchi consulted then County Attorney Hartwell Blake, waking him up from his notorious perch under the air conditioner at the back of the council chambers, and finally the specific ES's began to appear routinely on council agendas, starting with ES-1 (we're now up to ES-505).

The Sunshine law provision regarding executive sessions reads

§92-4 Executive meetings. A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for holding such a meeting shall be publicly announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded, and entered into the minutes of the meeting. (emphasis added)

But when we asked Kouchi to take a recorded, roll call vote he failed to respond and when Kaipo Asing took over as chair he continued the tradition despite years of prodding from us before we finally just gave up.

Well lo and behold a few weeks ago our ears and eyes perked up when the council was about to go into executive session and Furfaro asked then County Clerk Peter Nakamura for a roll call vote on each matter. And he's done so for each matter at each meeting since.

But of course for every step forward it's two steps backward for the Kaua`i County Council.

Furfaro is a stickler for the "council rules" which are generally passed by resolution at the inaugural meeting every two years, although they can be amended at any time by reso, as they were this year after a committee examined them.

But although community activist Bruce Pleas made it an issue a few years back, the following extremely important rule has gone back to non-enforcement status under Furfaro.

Rule 12 under Public Hearings states in Section e(4)C states that:

(C) Persons testifying shall clearly state their name, address, whom they represent, and whether they are a registered lobbyist, in compliance with H.R.S. Chapter 97, Lobbyist Law.

Not only is this a council rule but a state law.

Anyone either attending or watching the meeting on TV or on-line knows that this rule is never enforced. Recently during the debate over asking the legislature to close the loopholes in the solar hot water heater requirement for new homes, lobbyists from the Gas Company filed up to testify against the measure. They even flew one in from Honolulu. Not one identified themselves as a lobbyist, nor were they asked.

But Furfaro, who seems to constantly cite the rules, especially when it comes to limiting public testimony, seems to have somehow missed this provision.

Apparently the minotaur giveth, the minotaur taketh away.

TRY WAIT

TRY WAIT: The kvetch-fest over Governor Neil Abercrombie's "emergency" declarations- and the fact that he failed to tell anyone about one of them for months- suspending environmental and planning laws to clear ordinance from the beaches and oceans and nene from the Kaua`i Airport area would be deafening if it weren't for the paywall blocking the state's "newspaper of record," making it an unproductive endeavor to link to columnist Dave Shapiro’s traditional harangue or, surprisingly, Cynthia Oi's tome on the subject.

But while some debate whether these are in fact emergencies under state law, another "emergency" proclamation by his Governorship has got to be the slowest developing crisis in history showing that if you wait until the molehill becomes a mountain you can create a pressing matter of epic proportions out of anything.

The fact that a stretch of the highway near Lumahai has been falling into the ocean is no surprise to anyone who has driven the stretch in the past decade. But Abercrombie's "emergency declaration" on September 7 would make you believe that rather than it being a result of glacial-paced erosion, some menehune came in last month with pickaxes and chopped away at the coastline all in one night.

The fact is that the declaration is the result of almost a decade of trying to get the state to get its act together. We can remember current State Senator Ron Kouchi as Kaua`i County Council Chair- that would place it before 2003- grilling then County Engineer Cesar Portugal about what was thought to be the imminent loss of the northbound lane of the state highway.

What should be a state problem has since been a subject of concern for every council and county engineer ever since. While the county has been making temporary fixes, the state has dragged its feet in moving the highway 40 feet inland- the current "emergency" solution which was first proposed 10 years ago.

But that would have taken due process, pubic hearings and most importantly environmental impact statements, certified shoreline determinations and, quite probably, a plan to be approved by the Army Corps of Engineers, as we heard in council testimony over the years.

But noooo. The state's solution is to wait until it is an actual emergency and give the finger to due process, public hearings, transparency and, most importantly, any thoughtful review of the fact that if this section is falling into the ocean, what's next? That might raise the nasty problem of why we're putting things like bike paths- and even new homes under the county's new process for granting exemption from what had been widely acknowledged to be the strongest shoreline protection law in the country- 10 feet away from the shoreline in an age when climate change could well remove that 10 feet in as many years.

Is this the future of how the state's environmental and shoreline protection laws will be handled when the ocean come in to stay? Wait long enough to suspend them?

Apparently.

JETTIN' TO THE PROMISED LAND

JETTIN' TO THE PROMISED LAND: Upon disembarking, many Kaua`i tourist have been heard to happily exclaim that they feel like they just stepped back in time.

And sometimes- not so happily for kama`aina- it feels like even the interisland airlines are actually running a time machine.

How else do you explain the fact that when we wrote about the bizarre anachronistic fear-mongering emanating from the the Kaua`i prosecutor's and police chief's offices that resulted in a semi-aborted "rally" against the scourge of the evil weed, some mainland and even O`ahu readers thought we might be fabricating the extent of the fanaticism.

So thanks goodness they also scheduled flights back to the 21st century- or the Honolulu equivalent.

As loath as we are to give them too much credit, it's apparent that, with a little backing and a little luck, Hawai`i legislators just might be ready to grow up and leave the naysayers mired in their own skewed, self-serving world.

Because, believe it or not, three key bills on marijuana reform have passed the senate, "crossed over," passed first reading on the house side and received committee referrals.

Of course they have a long way to go but never before have any similar measures even gotten out of committee much less crossed over.

The two medical marijuana bills are astounding enough. The first, SB175 SD2, remedies that counter-intuitive set-up contained in the original law that put the program in the Department of Public Safety- the state agency that administers the prison system- and places it where any medical program belongs- in the Department of Health (DOH). That means that, among other things, rather than the "list" of patients being available to law enforcement agencies they will now have to check the participation of individual patients with the DOH.

SB175 SD2 has passed the senate and first reading in the house and been referred to a joint committee of the Heath and Public Safety/Military Affairs and the Finance committee.

One political note: as if to prove how out of touch some on Kaua`i are, the only "no" vote in the senate was from our own Senator, Ron Kouchi, who somehow was elected this past November, perhaps because he has brown-nosed the good old boys' political machine for so long- and had a war chest to prove it- that no one chose to oppose him.

The second bill, SB1458 SB2, remedies other absurdities in the original law by creating a path to "medical marijuana compassion center license(s) for the sale of medical marijuana to qualified patients." It also creates a "medical marijuana cultivation license" and a "medical marijuana-infused products manufacturing license" which would all be further defined and regulated by the DOH through administrative rules- rules which would be subject to public hearings. And for all you fiscal conservatives out there it "(e)stablishes a fee for issuance and renewal of a license and a special marijuana sales tax."

It has also passed the senate and first reading in the house and has been referred to a joint committee of the Heath and Public Safety/Military Affairs and the Finance committee.

The third, SB1460 SD1, is the miracle legislation which "(e)stablishes a civil violation for possession of one ounce or less of marijuana that is subject to a fine of not more than $100, and establishes an adjudicatory structure for its enforcement." That means that even though it would still technically be "illegal," possession of less than an ounce would be treated like a traffic ticket, not a "crime."

SB1460 SD1 also has passed the senate and first reading in the house and will go to a joint committee of the Heath and Public Safety/Military Affairs and the Judiciary committee.

It goes without saying these days that keeping possession by adults of small amounts of marijuana illegal is not only draconian but is costing taxpayers dearly. The only ones who oppose this are apparently those who stand to keep reaping the benefits of appropriations and grants... as well as the cash cow of the forfeiture laws.

The only problem is that all three bills, if passed in their current form, wouldn't take effect until July 1, 2050.

Well, no one can say the legislature doesn't have a sense of humor.

(PNN) OIP RULES FURFARO MEMO DISCUSSING DRAFT BILL NOT ILLEGAL ONLY BECAUSE IT WAS NEVER SENT

OIP RULES FURFARO MEMO DISCUSSING DRAFT BILL NOT ILLEGAL ONLY BECAUSE IT WAS NEVER SENT

(PNN) -- The Office of Information Practices has ruled that Kaua`i Council Chair Jay Furfaro did not violate the Sunshine Law because, according to County Clerk Peter Nakamura, a letter to fellow councilpersons discussing and soliciting support for a draft bill was never sent.

But OIP Acting Director Cathy L. Takase said that if Furfaro’s letter “had been circulated to all members, it would constitute a discussion of the Board’s ‘official business’ in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill.”

The bill- one that would have allowed Transient Vacation Rentals (TVRs) on agricultural lands via “non-enforcement agreements”- and cover letter in question first appeared in a since-removed blog post by local real estate agent Ronnie Margolis in December of 2008.

When PNN published the letter with allegations of a Sunshine Law violation on Friday, December 19, 2008 the OIP opened a case (S INVES-P 09-5) and in January sent a letter asking Furfaro for a response.

But instead of Furfaro responding personally, in February Nakamura wrote a letter defending Furfaro claiming that the letter in question was never sent to councilmembers. The letter also included a defense saying that even if he did send the letter the contents weren’t in violation of the law.

The OIP’s “Memorandum Opinion,” addressed to PNN’s Editor/Publisher/Reporter Andy Parx, does not indicate whether the councilpersons who were listed as recipients of the letter were asked if they received it.

The opinion begins by noting the “Request for Investigation” saying

Requester asked for an investigation into whether a violation of the Sunshine Law occurred based upon the distribution of a letter dated November 28, 2008 from then Vice Chair Jay Furfaro to the remaining members of the Kauai County Council concerning a bill proposing amendments to Kauai County Ordinance No. 864.

It then states the simple “Opinion” stating that

Based upon representations made on behalf of Vice Chair Furfaro and the Council, OIP finds that no violation occurred.

The “Statement of Reasons for Opinion” goes on to say:

In response to OIP’s request, Kauai County Clerk Peter Nakamura provided a response to Requester’s complaint on behalf of Vice Chair Furfaro and the Council. Specifically, Mr. Nakamura stated that the November 28th letter was a draft letter that was never signed nor circulated to the members. Mr. Nakamura further states that, as evidenced by your complaint, this draft transmittal was somehow obtained by the public. We note that the copy you provided to OIP is unsigned, which is consistent with this statement. Accordingly, we find no substantiation for your complaint of violation.

It is interesting to note that the OIP did not address an issue raised by PNN regarding the use of the media, including on-line posting, to attempt to circumvent the prohibitions in the Sunshine Law. The representation that the “draft transmittal was somehow (emphasis added) obtained by the public” though it is consistent with the fact that Margolis never stated unequivocally from whom he obtained the bill and letter.

As to who actually did receive the letter, the opinion says that

Mr. Nakamura did state that the Council Chair alone was provided a copy of the draft “transmittal” letter and draft bill, in accordance with the Council’s standing practice, to consider approval for inclusion on the Council’s meeting agenda.

Disclosure to the Chair alone would not violate the Sunshine Law because discussion between two Council members is allowed under the two-member permitted interaction. See HRS § 92-2.5(a).

But then the memo gets to the heart of the matter.

Furfaro has stated that he has been engaged with the OIP over the past two years- and says he spent $1700 in the process- trying to establish a defense basically saying that even if it was sent it didn’t violate the law.

But the OIP disagreed setting a precedent and sending a message to Furfaro that this kind of communication is illegal.

Takase wrote:

We note, however, that given the content of the ‘transmittal” letter, we believe that if it had been circulated to all members, it would constitute a discussion of the Board’s ‘official business” in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill. It specifically discusses the content of the draft bill and reasons why it should be adopted. A member’s expression of his or her views to other members on “official business” constitutes a prohibited discussion outside of a meeting regardless of whether the other members are physically present to hear an oral communication of those views or receive those views through other means, including through written correspondence. OIP Op. Ltr. No. 04-0 1 (position statements circulated and signed by members constituted discussions and voting outside of a meeting in violation of the Sunshine Law); HRS § 92-5(b)(no electronic communication shall be used to circumvent the spirit or requirements of this part to deliberate upon board business).

The opinion concludes by describing the “Right to Bring Suit to Enforce Sunshine Law and to Void Board Action” saying:

Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. HRS § 92-12. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.

Where a final action of a board was taken in violation of the open meeting and notice requirements of the Sunshine Law, that action may be voided by the court. HRS § 92-11. A suit to void any final action must be commenced within ninety days of the action.

The original letter was addressed to the following councilmembers :

Mel Rapozo
Tim Bynum
Ronald D. Kouchi
Shaylene Iseri-Carvalho
Daryl W. Kaneshiro
Joann A. Yukimura

Thus far none have confirmed or denied receiving Furfaro’s cover letter. PNN plans no court action unless one or more of them come forward to say he or she received the letter from Furfaro.

A FINAL SHOT IN THE CHAMBER POT

A FINAL SHOT IN THE CHAMBER POT: The final “gift” from outgoing Council Chair Kaipo Asing was presented during his final meeting Wednesday.

Unfortunately it was a gift for the developers of Kaua`i Lagoons not people seeking promised affordable housing, who were left holding nothing but a bag of steaming turds.

Along with returning Councilmembers Derek Kawakami, Dickie Chang and presumptive new chair Jay Furfaro, they simply gave away at least 41 of the 82 Waipouli Courtyards affordable housing units, which can now even become transient vacation rentals (TVRs) should the developers so choose.

Outgoing Councilperson Lani Kawahara put it best saying “I can say this because I’m gonna leave- sometimes I feel like I’m sitting at a Chamber of Commerce meeting not necessarily the chamber of the people,” after a failed attempt to at least delay the measure which came as a legal document rather than an amendment to the zoning ordinance- the normal way to alter conditions.

Of course “Mr. Big Save” Kawakami said of Kawahara’s statement “I take that as a compliment”.

An ordinance change would have taken at least four weeks under normal procedure. A deferral would have seen the next council, which takes office December 1, vote on the matter.

The developers brought on the crocodile tears saying they couldn’t rent the units that were to be rented to people making up to $67,000 a year (120% of median income), so not only do they get to rent out the units at market prices to all comers- no matter what income and no matter where they currently live- but they were able to get the council to vote to chuck the whole “10- year affordability” clause.

The project is in a Visitor Destination Area (VDA) where TVRs are permitted, unaffected by the recent TVR grandfathering and ban in non-VDA areas.

Another simply astounding revelation came from the once and future, incoming Councilperson JoAnn Yukimura who urged deferral so that the council could do their “due diligence”- which was apparently extensive.

The shocker was that, despite the fact that 41 of the units are supposed to be rented to people who qualify for HUD Section 8 rental vouchers by making 80% or less of the median income, Waipouli Courtyards has been refusing to rent to Section 8 clients due to a dispute with the County Housing Agency over energy allowances for HUD clients.

The measure- which came from Mayor Bernard Carvalho’s office rather than county housing- was pushed on through by a 4-2 margin with councilperson Tim Bynum joining Kawahara in seeking to refer the measure to the Housing Committee for further due diligence, with lame duck Asing casting the all important fourth vote at his final meeting.

The most objectionable part was that all the councilmembers seemed to buy the developers argument that the affordable housing project- which was given to the county in exchange for the developers being allowed to develop Kaua`i Lagoons- was unable to turn a profit or at least break even “in this economy” so they should be let out of their commitment.

The fact that the Kaua`i Lagoons project as a whole is going to be immensely profitable and that “success” of the affordable housing component should, by all rights, be measured in combination with the resort development, was lost on everybody.

The fact that Waipouli Courtyards is one of the only low income rental housing givebacks the council has ever required (most are for sale) was not even considered, of course.

And just like the recent removal of an affordable housing requirement for Kukui`ula, it went way beyond what the developer had asked for- in this case, according to testimony, the removal of the 10-year buy back.

There was lots of discussion of how the county has first right of refusal should the project go up for sale and a lot of talk about buying it. But of course with the lifting of the condition, the value of the project and therefore the price to the county will soar, doubly screwing the county if and when that happens.

It wasn’t the first time a lame duck screwed the people and it won’t be the last. Voted-out Billy Swain cast the deciding vote in November 2002 for a General Plan update after he and lame ducks Ron Kouchi and Randall Valenciano amended it to put his bosses’ “Princeville Mauka development” on the official development map.

But as for Derek, Dickie and Jay, that’s what you voted for and that’s what you’ve got for the next two years- a developers dream team. All they need is one more vote and that shouldn’t be too hard to find.

DON’T VOTE FOR TOKIOKA, SAGUM OR KOUCHI FOR STATE LEGISLATURE OR INOUYE FOR US SENATE

DON’T VOTE FOR TOKIOKA, SAGUM OR KOUCHI FOR STATE LEGISLATURE OR INOUYE FOR US SENATE

(PNN) -- Jimmy Tokioka (State House 15th), Roland Sagum (State House 16th), Ron Kouchi (State Senate 7th) and Daniel Inouye (US Senate) are some of the most objectionable reprehensible people on the Kaua`i ballot and we urge voters to vote for their opponents in the Democratic Primary September 18.

While their opponents- Rhoda Libre (House 14th) Dee Morikawa (House 15th) John Sydney Yamane (Senate 7th) and Andy Woerner (US Senate)- are unknown quantities and we can’t really say they would support the issues we hold dear or be great legislators but they certainly cannot be or do any worse.

Tokioka- a former Republican councilmember who opportunistically switched parties when he ran for the legislature- is a racist philanderer who has been a thorn in the side of the controlled growth, progressive community for more than a decade. Among his other offenses at the legislature was his obstinate opposition to civil rights during the civil unions debacle.

Sagum is a developer who also opposed civil unions and recently even represented the owner of infamous north shore mansion “farm dwelling” before the planning commissions.

Kouchi has had a long history on the council, leading the land-rape efforts during the 90’s- before acknowledging his shameful actions, claiming he had “reformed” when he ran for mayor- then moving on to represent the latest developer of the old Westin property in a huge zoning giveaway disguised as a gift of un-developable coastal land to the county.

Inouye, the old war monger, needs no introduction to those who have opposed his single handed militaristic buildup in Hawai`i for many decades. He’s been a mainstay in the theft of Hawaiian lands for generations and a key cog in the genocide. Twenty years ago he led the Democratic effort in the senate to ignore Ronald Reagan’s Iran contra involvement.

Libre, Morikawa, Yamane and Woerner have given us a choice. Let’s take advantage of it.

ON MONKEYS AND WEASELS

ON MONKEYS AND WEASELS: The music is playing and to no one’s surprise one of the oldest if not the goodest of boys Ron Kouchi has publicly announced he is circling the state senate seat being vacated by Gary Hooser, who is running for lieutenant governor.

Despite what many might think long time Councilmember and sometimes Chair Kouchi is anything but a shoo-in after his recent identity crisis blew up in his face when he lost his first council election after one term that followed a hiatus when he lost his first race ever to Bryan Baptiste in 2002 when the “developer’s best friend” suddenly attempted a chameleon-like rebirth as a slow growth, environmental champion- in an unsuccessful attempt to end the Republican reign of Maryanne Kusaka.

Kouchi lost the mayor’s race because, despite the utter disgust with Baptiste among much of the populace his attempt to corral the “JoAnn Yukimura vote”- while she was absent from the political scene following her mayoral loss in 1994- was greeted with more than cynicism and derision when many kept their promises to themselves to never vote for Kouchi, who was the main thorn in the side of Yukimura during her six year administration.

The result is that Kouchi’s mostly local base of support now sees him of something of a traitor and opportunist who abandoned them for the “haole vote” while the controlled-growth crowd had their suspicions of his intent confirmed when he went to work for the developers of whatever-the-heck they’re calling the Westin these days after his mayoral race loss.

There his crowning achievement was bamboozling the council into giving up massive development rights to the area above Nawiliwili in exchange for the donation of a “park” along the coastline, giving up only an area that was a tax liability that could never have been built upon and yielding a county run- and taxpayer maintained- amenity for the patrons of the development.

Kouchi learned this ploy during the Trojan horse “gift” of the Kealia to Kuna Bay (donkey beach) area by Kealia Kai developer Tom McCloskey.

Because areas by the beach are generally in the state conservation district they are a two sided sword for developers these days. Though they are desirable areas for those patronizing an ocean front property they are not only undevelopable without a severe setback- out of the conservation district- but the property taxes on conservation land are the highest of all.

That plus “recent” (over the past 20 years) legislation requiring pubic access – including lateral access- leads to a great expense for a developer- a virtual public park on their private property which they must not only pay to build but pay to maintain.

McCloskey came up with the idea of the gift horse of the ocean front land to the county- along with restrictions that would have turned it into a county owned and run private beach with severely restricted access- and it was only the mouth examination of then councilperson Gary Hooser (over the objections of then councilperson Bryan Baptiste) that put a stop to a quick, first blanch approval making sure access would be maintained.

That was the time when, as public outrage over the restrictions grew so did the idea of “the bike path”. Kusaka- whose support of McCloskey was similar to that of Jimmy Pflueger in terms of the “hands off” directive to Public Works Department personnel- came up with the plan and convinced the none too swift Baptiste to accept the land to serve as “matching funds” for federal transportation bike path money sitting untouched in the state highways division coffers.

Few really understood the true motivation behind McCloskey’s gift at the time but it was not lost on Kouchi who used the same gift ploy to earn his big bucks for the Nawiliwili developer in obtaining massive, previously-denied development rights in a win-win for the developer and a lose-lose for the county which would have had a virtual public park with no development rights if they would have refused the “gift”.

Kouchi’s public announcement comes at a time when his notorious “war chest” is down to $725.01 according to his recent Supplemental (July 1 - December 31, 2009) filing for the 2008-2010 period which shows he somehow spent $3,552.54 since the last election.

His early announcement is quite obviously designed to scare off competition, depending on his reputation as a prodigious cash producer in the past.

And his actions over the past eight years portend well for his continuing to lead the money race for the Senate seat.

POLITICAL WON’T

POLITICAL WON’T: Our post Wednesday on the flakey “opinion” given to the charter commission regarding the county manager issue drew a couple of comments that deserve exposition, on an issue we kind of glossed over because it seemed to be self-apparent to us- but obviously not to everybody.

Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked

...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.

Attorney blogger Charley Foster was of course more to the legal point saying

I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.

So let’s look at the words in the relevant constitution and statue passages.

In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:

Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.

Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...

HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.

Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).

Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.

As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive

All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.

And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.

It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.

We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.

Trask writes:

According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).

Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).

So let’s look at Trask’s arguments one by one:

The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.

Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.

Trask continues:

Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.

We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.

He then seeks to establish what may be called a four prong test.

The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:

1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.

True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.

2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.

It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.

And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?

3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.

We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.

4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.

Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.

Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.

The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.

-------

Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.

Doug also asked

... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?

That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.

Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.

For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.

Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.

But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.

The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.

But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.

Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.

But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.

Clear as mud?

--------

With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.

BREAKING UP THE PACK

BREAKING UP THE PACK: Tomorrow’s showdown at the C-O-K Corral- aka the County of Kaua`i Council Chambers- has, much to our surprise, drawn beaucoup attention in the newspaper and among even those most politically distracted citizens on the island.

As many have heard in the reams of e-mails flying about, Wednesday’s agenda includes two diametrically opposed items on the subjects of open governance and transparency that dissident councilmembers Tim Bynum and Lani Kawahara forced into public scrutiny in June.

Not only is the promised “discussion” of the archaic council rules up for debate but, in response, the forces of darkness have led Councilpersons Jay Furfaro and his sidekick “nice guy” Dickie Chang to try to block any changes.

They’ve introduced a resolution asking the council to “appoint a special advisory committee” made up of three well known allies of Chair Kaipo “the Minotaur” Asing- charter members of the old boys network former Council Chair and long time member Ron Kouchi, former state circuit court Judge George “Spike” Matsunaga and long time board and commission member and all around status quo defender Phil Tachbian... and if they aren’t sycophantic enough of the status quo the alternate is the head of the Chamber of Commence, old boy in waiting Randall Francisco.

Their task?- to “recommend amendments to the rules”.

And these guys “ain’t the old boys”, as Chang was quoted as saying? Either Chang is obscenely disingenuous or lives in his own Wala`au world of naivety.

It is the ultimate absurdity. They want to appoint an opaque body, not subject to open meeting laws to hold a discussion and report on how to bring open government and transparency to the council. It’s a conversation that should be happening in open session, before the council, with public testimony, not behind closed doors with the sole input of three or four people who could never in anyone’s wildest imagination be confused with open governance and sunshine advocates.

Oh, did we mention there’s another measure?- a cryptic little ditty that no one who hasn’t been bulldogging this issue would notice or comprehend.

A few weeks back discussion at the council table centered around one of Bynum and Kawahara’s demands- that all materials that are addressed to councilmembers or are distributed to other councilmembers get to them in a timely manner and not be subject to the whims of County Clerk Peter Nakamura. At the time, County Attorney Al Castillo halted the discussion to say that any conversation criticizing Nakamura was a “personnel” discussion and must be held behind closed doors.

So this week there is an executive session scheduled to “consider the evaluation of officers and/or employees where consideration of matters affecting privacy will be involved and associated matters”. Note the absence of what the heck this is really specifically about- something required by the sunshine law

So, in a nutshell, what do we have?

First it was pure stonewalling in refusing to hear the specific rule changes that Bynum tried to introduced in June. Then when that partially failed and Kawahara found a strategy to get a “discussion” of the subjects on the agenda, they delayed as long as they could until tomorrow finally came around.

But in the interim they bogusly got the administration to announce that very limited council materials would be posted on the web site, lying about the supposed “year-long” efforts, including absurd excuses like the death of Bryan Baptiste and last year’s elections.

And now the latest scam- delaying any action for at least three months so three skilled obfuscators and defenders of the realm can go behind closed doors and decide how to, most likely not change the rules in any way except perhaps cosmetically.

Oh, and they’ve put discussion of the staff’s complicity behind closed doors. presumably including reforms as to the staff’s role in the effecting reform. Any discussion of the job Asing’s chief henchman Nakamura is doing goes into the black hole of executive session where it can be disposed of without a public whimper.

Who thinks this stuff up?

We’ve never seen a more politically complex “inside baseball” matter take hold of the community the way this one has. It apparently has touched an already exposed nerve of long-time frustration with the council.

If the chambers aren’t packed at 9 a.m. tomorrow we’ll actually be surprised and we rarely think people will really show up.

The surprising thing is that it’s not just the usual suspects who are fed up with Asing and the others if the outpouring from the community that usually votes back in the incumbents and likes the status quo just fine, thank you, is any indication.

As a matter of fact, even though the real underpinnings of the actual “conspiracy” are more than enough to raise ire, some people have gone wild with their own theories.

We heard this week- and we must say up front that we have absolutely no knowledge that this is true- that according to the scuttlebutt on the south side, “all of them”- Asing, the other four councilmembers, Ron Kouchi, Castillo, Planning Director Ian Costa, and all the rest of the Minotaurs’ minions- have regularly been seen coming and going at Ron Kouchi’s house, presumably meeting to plot strategy.

Obviously this is an imaginatory figment- it would be way too risky for them to illegally meet like that and frankly most of them haven’t got the political skills or intelligence to set that up much less come up with anything effective... as evidenced by the patently silliness of the two blocking measures on this week’s agenda indicate.

But we tell the story because it does show how people are finally finding out what’s been going on and are no longer unwilling to believe the crap that’s being shoveled their way

In fact, they have filled in their own conspiratorial blanks.

So send out the border guards, the kingdom is crumbling. If this time of no bread makes you yearn for the circus you could do worse than to be there at 9 a.m. tomorrow. They say there could be fireworks AND a dog and pony show.

AND HAST THOU SLAIN THE JABBERWOCK?

AND HAST THOU SLAIN THE JABBERWOCK?: When the local paper’s former editor Adam Harju left for Cambodia many in the community clinked Champaign glasses and happily warned him against letting the egress barrier strike him in the posterior upon his way out.

And why not? Like most others he came here “on the circuit”- a loose web of small newspapers around the country where journalists float from job to job for short periods until they wear out their welcome or have a chance to “move up” to either a larger newspaper or an editorial or management position.

Many chortled at Harju’s oft-stated concern for the community and his vow to stick around (as long as the surf was good). It was nothing we hadn’t heard from the others and won’t hear again.

And although Harju was originally gung ho for the idea of regular local columnists he was soon set straight by Publisher Mark Lewis as to what was and wasn’t acceptable to the advertisers and local power elite.

Though many- us included- sought a regular column only two scribes made the grade. The first, Juan Wilson, was soon hastily dispatched when he submitted an article critical of the local constabulary’s militaristic buildup.

And that left one- retired Princeville attorney Walter Lewis whose prose graces the lowest circulation day’s opinion page every other week.

Lewis’ columns are generally repetitive, plodding , bland and, though many have criticized the county council and other boards and commissions for their penchant for secrecy, pretty innocuous.

But although his subject matter has been limited, his factual claims have generally been on target... until now.

The problem with Walter is- as anyone who has tried to work with him on any issue soon finds out- he is never wrong, never makes a mistake and won’t listen to anyone. If any idea isn’t Walter’s it not only goes in one ear and out the other but is dismissed through the kind of smug and disingenuous obtuseness only Walter can muster.

And so it was no surprise this week that, when we found a major error in the main premise of his column on property tax appeals this past Saturday, even when faced with the irrefutable error in fact, his final word on the matter was essentially “that’s my story and I’m sticking with it”.

Lewis’s offending paragraph read as follows:

The property tax law contains a serious flaw affecting whether taxpayers must accept an unjust assessment of their property. Under the tax code a taxpayer may not appeal an assessment made unless the assessment amount is more than 20 percent higher than the prior annual assessment. In our present climate even continuing the 2008 year opening value may be a serious overassessment but a taxpayer would have no right to appeal it. Elementary justice requires that this be changed.

Problem is that this just plain wrong. Nowhere in the law does it even mention anything about “prior annual assessments” or anything like it.

Having followed the public hearing at which both Lewis and North Shore Realtor Mike Dyer testified we though we heard Walter say the same thing in testimony only to be contradicted by Dyer and by what we had understood to be the process for many years.

In fact the “20%”- which is a figure subject to a reduction to 10% in a bill on the agenda at next Wednesday’s council Finance Committee meeting- refers to the difference between what the county assessor claims is the value of your house or property and what the Board of Review finds to be the actual “market value”.

The language in Section 5A-12.3(a) is as follows:

"No owner shall be deemed aggrieved by an assessment, nor shall an assessment be lowered ... unless there is shown: (1) Assessment of the property exceeds by more than twenty per cent (20%) the assessment of market value used by the Director as the real property tax base".

So we spent the last week emailing both Lewis and Dyer to straighten it out and give Lewis a chance to simply recognize his error and correct it. We all make mistakes and it’s something one would think any responsible journalist with a regular column in the newspaper would welcome the chance to do.

Ah but not Lewis who stated to the council he had never actually filed an appeal while Dyer, who owns a lot of property on the island, said he usually files one or more almost every year.

In an email to PNN Dyer explained the way it actually works, the same way he did when he testified before the council in favor of not just lowering the difference to 10% but advocating for an arbitrator type system to replace the current method used- a determination by the Board of Review (the only county board that pays its members) using some set of secretive almost magical soothsaying machinations to find out whether the assessor’s valuation is off by more than 20% and what the correct value should be.

In an email Dyer explained:

The "Taxpayer's Notice of Real Property Tax Appeal" form requires that the taxpayer state what his assessed value should be. The value stated must be 20% lower than the assessed value provided to the taxpayer "on or before March 15th preceding the tax year" by the assessor's office. The form only includes one check box option for " ... grounds of objection to the assessment per Section 5A-12.3 ...": " The assessed value of the property exceeds by more than twenty percent (20%) the ratio of assessment to market value." If you submit an appeal claiming a market value that is not at least 20% lower than the assessor's valuation you won't be scheduled for an appeal hearing.

The language in Section 5A-12.3(a) is as follows: "No owner shall be deemed aggrieved by an assessment, nor shall an assessment be lowered ..., unless there is shown: (1) Assessment of the property exceeds by more than twenty per cent (20%) the assessment of market value used by the Director as the real property tax base, ...". I have no idea what the last phrase means. However, my experience has been that you must contend that the assessor is too high by at least 20% or you don't even get to play.

In actual appeals it has been my experience that the Board of Review can be fickle. I have seen them grant adjustments of less than 20% and I have seen them uphold the assessor's valuation because the taxpayer didn't convince them in an amount which quite reached the 20% threshold ... losing even though you win.

Dyer’s email was addressed to Lewis too and we thought that surly with the ordinance being cited- a law that Lewis presumably has seen since he was observed reading from the entire current ordinance as he testified- that Lewis would act to correct himself.

But suddenly Lewis became obtuse and unresponsive until we persisted in finding out whether he wanted to make his own statement rather than having us correct it for him.

If the misstatement was left to stand there’s no telling how many homeowners might be wrongly dissuaded from thinking that could even file an appeal.

That’s when he told us it was only our “opinion” as to what the ordinance said and that he would not be correcting anything.

This is typical Lewis, the father of the infamous “Ohana” Prop.13-type tax measure approved by voters and struck down by the Hawai`i Supreme Court, exemplifying his modus operandi.

At the time, when the idea was in it’s infancy, the notion of capping the annual growth of the actual tax paid by the home-owner/occupant at 2% a year and rolling the “base” back to the time before assessments started to sky-rocket, seemed a decent one to many.

Horror tales abounded especially those whose taxes went from a few hundred to many thousands a year, including retired people on fixed incomes and others whose valuations increased exponentially due to sales of neighboring properties to rich off-island speculators during the housing bubble.

But as in uffish thought they stood, many said “hey wait a minute”. The measure was designed to accommodate those who had no intention of selling their homes and just wanted to live in their now million dollar houses for which they paid maybe $50,000 or less... or even inherited.

So one provision was suggested to Lewis, eventually even by Ohana co-founders Ray Chuan and Glenn Mickens as well as then Council Chair Ron Kouchi.

To get more support for his “charter amendment” and perhaps get the council on board or even put it in an ordinance, they simply asked that when and if the house was sold, the taxes saved over the years should be paid back to the county.

But Walter wouldn’t listen and so when the council sued- and the courts struck it down saying only the council could determine taxes- homeowners were left with no real cap except one that the council passed without the rollback to the pre-bubble prices- after the horse was out of the barn.

And because of that, many lost their homes or are still paying inflated taxes today.

Iconoclastic is often a nice way of saying pig-headed and never did that apply more than in the odd case of this oddly pompous man, Walter Lewis.

GIFT HORSE

GIFT HORSE: A rather routine communication on tomorrow’s county council agenda will probably be approved without any discussion or debate but that doesn’t mean that similar requests in the past haven’t been challenged by councilmembers.

Communication C 2009-41 is a standard request from Fire Chief Bob Westerman

requesting Council approval to accept a $500 monetary donation from Mrs. Clorinda Nakashima for the efforts of the Fire Department in trying to find her husband which funds will be deposited into a grant account for future use in recognizing firefighters.

But a similar “gift” came before the council back on 2002 in the lead-up to the mayoral election and then Council Chair Ron Kouchi seized on it to ask about the legitimacy of allowing the Fire Department to deposit gifts that are given “in appreciation” of their work into special Fire Department accounts rather than in the general fund.

Kouchi’s thinking was that the county funds the fire department’s activities and that money is what allows the department to do their job. So if someone is appreciative of their efforts and wants to give the county what in essence is a “tip for their services that money should go into the general fund where the council- not the department- can appropriate it with a view toward the yearly budget as a whole.”

In the 2002 case a Hollywood production company wanted to donate quite a handsome sum in appreciation for the assistance of the Fire Department which stood by and assisted with elements of their production and wanted to deposit the check in a special Fire Department account.

Kouchi- who was running for Mayor against two fellow councilmembers at the time raised eyebrows among political observers because when it comes to elections support from the KFD has always been uniquely essential in any winning effort.

But the thinking was that one of his opponents, eventual winner Bryan Baptiste, had all but locked up the coveted endorsement and this was Kouchi’s way of “sticking it to” the department by taking away a traditional source of a KFD “slush fund”..

But although the impetus might have been purely political on Kouchi’s part the idea at the heart of it made sense to many at the time, as it does now.

Although there are no allegations of irregularities in this case it’s not much of a leap to see the possibility that the department could bestow it’s “favors” on a certain people and businesses based on their likelihood to “donate” to a fund for “for future use in recognizing firefighters” while withholding them from others who might not.

Even though in this case the $500 came to “express our heartfelt thanks...for their tireless efforts in trying to find my husband’s body (who) lost his life when he want fishing on September 15 and never came home” according to Nakashima’s letter of gratitude the way our county government is set up it is the council who makes the tough decisions on how and where to spend taxpayer money.

When those decisions result in a department doing their job and a gift comes out of it, the money should rightly go to the general fund to be re-appropriated as the dictates of the county’s fiscal situation allow.

The process is what’s important here. Last month the Kaua`i Police Department accepted $14,790.57 worth of brand new equipment including a $1500, 42” Sony flat screen TV, furniture, keyless entry and gun locks, and a storage shed for its Hanalei Substation from David and Gina Moore of Princeville.

Although Communication C2009-22 didn’t say why the generous gift was bestowed when the county allows gifts to go directly to a department without the regular budgetary process the gift horse can easily be a Trojan horse if it’s used to benefit the giver or if the department gives out special favors in appreciation of the gift.

It’s not a matter of whether that scenario plays out but department personnel shouldn’t be put in a position where there is even the temptation to show favoritism or effectuate a quid pro quo..

And one more note on tomorrow’s meeting.

We’ve given extensive "ink" (as it were) to Bill 2294, regarding adding signage and notification provisions to the “grandfathering” of transient vacation rentals ordinance passed this year and an amendment to it passed in committee last week regarding the public availability of the names of those applying for the grandfathering.

So twice- on Friday and again yesterday we trudged down to the Council Services office to pick up a copy of the “Draft 1” version of the bill, as amend versions of the bill are called.

And both times we were told it “isn’t ready yet” with no explanation of how or why a bill amended in committee- a process that requires the amendment to be in writing and passed by a majority of members of the committee- can be unavailable.

It’s especially irksome given the six day notification provisions of the state Sunshine law.

By all rights, as we said yesterday, the amendment shouldn’t have been put into this bill because, in violation of the charter, it isn’t encompassed in the “purpose” section of the bill.

But if the public can’t see the bill that’s up for final passage tomorrow in advance of the meeting how can the public possibly be able to speak intelligently on the matter?

We don’t expect the council to do the right- and legal- thing tomorrow anyway but they could at least not make it so easy for us to again compel our perennial query of “can’t anyone here play this game?”