TIME

TIME: Normally when Kaua`i Councilmember Mel Rapozo goes on a crusade it's like watching the proverbial broken clock that's right twice a day.

That's usually because of the babooze factor that addles Rapozo, making his penchant for political expediency obvious to all.

So when, according to the local newspaper, he decided to go to court to show that the word "shall" always means "must" when it appears in legislation no one expected him to be right.

For those who have missed the seemingly idiotic argument last month, the county charter specifies that that Salary Commission's resolutions setting administration salaries "shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15."

Although the charter doesn't say so in so many words, it's apparent that the provision is there is in order for the salaries to be set when the yearly budget process begins.

But when the commission tried to present a supplemental resolution to cut administrative salaries this past August Rapozo tried to nix the reso because, he said "shall means shall."

But County Attorney Al Castillo, always one to make sure Mayor Bernard Carvalho- at whose behest the Salary Commission submitted the resolution- gets his way, told the council that the word "shall" can mean "may" when it is used in a "directory" manner.

Now our first thought was that the whole matter was really stupid because the fact is that it's always before March 15- in this case March 15 of 2012. But we also suspected that Castillo, who shares a case of "broken clock syndrome" with Rapozo, might be pulling a fast one because with two broken clocks the odds are increased that something is going to be amiss.

Yesterday, upon the news that Rapozo was going to go to court, attorney-blogger Charley Foster sought to clarify the fact that yes indeed the word "shall" could be used in a discretionary manner, according to previous court rulings.

The problem for Castillo- who certainly has access to the same law books as Foster does- is that in order for "shall" to be used in a non-mandatory way it must meet a "three pronged test" according to the courts.

The term three (or any number really) pronged test means that the subject must meet all three conditions to be true. And apparently the passage in question doesn't meet any of them.

Citing State v. Shannon, 185 P.3d 200 (Haw. 2008), Forster noted that the Hawaii Supreme Court listed the three conditions, saying:

First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.

The word confute means "to prove to be false, invalid, or defective; disprove." So the first means that basically it would have to make the whole passage contradictory to interpret it as "must." That doesn't seem to be the case here because it is clear that the deadline anticipates the budget process when the salaries are to be appropriated.

So already it doesn't meet the three prong test.

The second certainly isn't true- there is no injustice in submitting the reso before March 15. It many thwart the mayor's political will but that's not part of the test here.

Finally there is certainly a "benefit sacrificed." The benefit of "salaries" is being altered so the last test isn't met either.

As happens on occasion, even though Rapozo is just playing political games here, he is baled out by an equally politically motivated Castillo who pulled the "directory" ploy out of his butt and thought Rapozo would just go away when he brought out the legal mumbo jumbo.

It's doubtful that Rapozo was aware of the three prong test and just lucked out in that, when he goes to court, he will now be armed with Foster's little side research project.

But then you never know who's gonna win out when the battle of the tiny-yet-devious brains pits two such evenly matched opponents.

PAY THE LADY

PAY THE LADY: Kaua`i County Council meetings are generally political exercises with long-winded, often well-deserved finger pointing at a stumble-bum mayor and his ever expanding cadre of appointed dimwitted cronies being the rule rather than the exception.

So it was no surprise that the subject of paying them all resulted in a few of the wilder politically-tinged sessions, with each councilmember unable to agree with any of the others on what the biggest issue was but all agreeing there's something rotten in the state of Lihu`e.

We've yet to view yesterday's finale to the latest chapter in the continuing saga regarding the most recent Salary Commission resolution where it was allowed to become law, if (always a big if) the local newspaper article is to be believed.

But anyone who has paid attention over the years knows that the debacle of political gamesmanship in every nook and cranny of Kaua`i government is the result of an ironic and iconic self-lit exploding cigar.

The subject of any legislative body's salaries is always a touchy subject. Kaua`i was no different and decades back the Salary Commission (SC) was created to take some of the pressure off the council so they could get a raise without really proposing one.

The only problem was that even with a recommendation from the SC, the council still had to ultimately vote to raise their own salaries. They tried some tinkering over the years, once to change the county charter to make any raise take effect only after the next election. But that didn't do any good because everyone knew that the incumbents were reelected over and over.

So throughout the 90's and into the 2000's, the council's, the mayor's and all other appointed officials' salaries remained the same because the council couldn’t stand the political heat associated with raising them. The council's salary for what was turning into a full time job as the island grew, was stuck at $28,000 and $32,000 for the chair. Some of their clerks were getting almost twice that.

It got to the point where civil service workers in many departments were getting paid a lot more than the department heads. In one case the salary for the County Engineer- the head of the Public Works Department- was so low he quit to take a civil service job in the behemoth department, leaving the job open for many years because no one who was qualified would take it.

Finally a solution was proposed. In an "experiment to take the politics out of the process," as it was called, the SC resolution wasn't advisory any more but would automatically take effect unless five or more members of the council voted stop it.

But really it was just an illusory change and although the smoke and mirror machines were fully engaged, people saw- or at least the council assumed the people saw, which is the same thing- that the council was still, in essence, in charge of either accepting or rejecting their own raises.

Though the first few raises went through with minimal grumbling because voters accepted the "salary inversion" excuse cited above, no one foresaw that the exponentially ballooning pay raises contained in the multiple-year resolutions would become outrageous when things like "furlough Fridays" and 5% pay cuts came about after the bottom fell out of the free enterprise system.

All of a sudden the whole process had to be reversed and the council was faced with a "yes means no and no means yes" situation where allowing the current resolution to pass would actually be giving out pay cuts and voting to reject the reso would allow raises to go into effect.

That's where the incompetence of the local newspaper comes in because none of the council members trusted reporter Leo Azambuja to correctly report the story so each councilmember, with visions of "Council Votes For Pay Raise Resolution" headlines, came up with his or her own excuse for why they were voting against the reso.

Some cited the March 15 date in the charter by which the resolution "shall" be forwarded to the council. One cited the apparent ethical violation allowing Boards and Commissions Administrator John Isobe to write the actual resolution lowering everyone's salary but giving himself a raise. Another claimed that the mayor directed the whole thing, charging impropriety through interference with the supposedly independent SC. Still another complained about the fact that the budget didn’t reflect the resolution even though the amounts were actually less than the salaries appropriated in the budget.

It got so wild that, in an unprecedented move, County Attorney Al Castillo took the hot seat and gave off-the-cuff verbal legal advice, trying to placate councilmembers' various phoney finaglings, with often conflicting and confusing opinions... made all the more perplexing when Castillo's deputy Mona Clarke sat in and gave even more advice, much of which was at odds with Castillo's counsel.

It's no wonder that the the council couldn’t even actively decide to "receive" the reso, essentially killing it and had to kill it via a reported tie vote which had the same effect of receiving it but without the full set of fingerprints.

Meanwhile any changes to Article XXIX of the charter regarding the Salary Commission isn't even on the radar screen of the Charter Commission which is contemplating asking voters once again to remove the prohibition on board and commission members from asking for money, favors and otherwise lobbying the council, planning commission and other boards and commissions... even though the same amendment was soundly rejected in 2010.

If campaign money is the mother's milk of politics then the actual salaries of elected officials is the meat and potatoes. But either way there's bound to a nice buffet spread to enable the expected politically-motivated food fight when next year's salary resolution hits the council floor.