DEEP LACK OF BACKGROUND

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

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

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

But until now we never had any unpublished insight into what kind of warped thinking goes into the utter lack of accountability that Leo has made his hallmark.

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

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

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

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

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

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

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

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

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

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

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

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

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

1) From Azambuja to Iseri:

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

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

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

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

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

Aloha, Leo

2) From Iseri to Azambuja:

No.

Shay

3) From Azambuja to Iseri:

Ha, not a problem Shay,

See you tomorrow at council.

Aloha,

Leo

4) From Iseri to Azambuja

Thanks for the sense of humor :-)

Shay

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT

IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT: Sometime it's an occasion for a straight rant, usually after an unusually pathetic, yet successful injustice has been perpetrated. But sometimes things are so enraging and we find it so hard to fit into our new and improved engagingly rabid outfit that we resort to a simple news report.

So after receiving word last week that the Office of Information Practices (OIP) decided to issue an "informal opinion" saying that Former Chair Kaipo Asing conspired with former County Clerk Peter Nakamura to go behind closed doors under false pretenses three years ago, in order to contain our rage we went with the just the facts, ma’am.

We were just going to leave it at that until yesterday when Joan Conrow carefully inserted the opinion in our craw speaking about how

former County Council Chair Kaipo Asing violated the sunshine law — three years ago. Yup, that's how long it took the OIP to rule on a citizen complaint. And even then, you still would have to go to court to void any action that was taken during an improperly noticed meeting, adding many more months to the process. It seems government transparency, absent expediency, doesn't really count for much.

ALL RIGHT, ALL RIGHT, ALL RIGHT. We can't get away with anything around here.

We did intentionally leave out the end of the opinion because to delve into what it truly meant would have generated enough ear-steam to power a small village.

It repeated one of the most egregious half truths in the annals of open governance. Under the title "Right to Bring Suit to Enforce Sunshine Law and to Void Board Action" it said:

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. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.

This bit of butt-derived garbage directly conflicts with the state Sunshine Law which, in Section §92-12 "Enforcement" says:

(a) The attorney general and the prosecuting attorney shall enforce this part.
(b) The circuit courts of the State shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy.

Pretty clear, eh? Yet not one of the hundreds of of formal and informal opinions OIP has issued since 1989- especially the dozens that essentially called the actions of various boards unlawful- has been enforced by either the attorney general or any of the county prosecuting attorneys.

But how can that be- isn't the law clear as to their responsibility?

You'd think so- but noooooo.

Although it's been a while since the last time any attorney general has responded to an inquiry- and we don't believe there is a written opinion on the subject- when we did get an answer way back when, we were referred to the rest of the "Enforcement" section. It says:

(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body.

Though the reasoning is way too tortured for the way understand logic to work the gist of the AG's contention is that, because "(a)ny person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance," the AG will not do a damn thing and rather, will graciously allow one of those "any persons" do the dirty work.

The problem with that is two-fold. First of all the law doesn't say the AG may enforce this part it says (s)he "shall" enforce it.

For the second problem the first thing one must do is take a look at the next part of the Sunshine Law- §92-13 Penalties.

It says:

Any person who wilfully (sic) violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law.

Misdemeanors in the state of Hawai`i are punishable by not more than $1000 fine, a year in jail or both.

Yet §92-12(c) refers to the lawsuit a person files being "for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body. "

The problem that we're talking abut meetings where the board is about to go into what is essentially an unlawful secret meeting. So how would you stop them? With an injunction? Well, a certain conundrum is presented by the rest of §92-12. That bit of unreality says:

(d) The proceedings for review shall not stay the enforcement of any agency decisions; but the reviewing court may order a stay if the following criteria have been met:
(1) There is likelihood that the party bringing the action will prevail on the merits;
(2) Irreparable damage will result if a stay is not ordered;
(3) No irreparable damage to the public will result from the stay order; and
(4) Public interest will be served by the stay order.

As we said, it doesn't matter what the heck the likelihood is of a party prevailing, any irreparable damage or some kind of public interest because the deed will have already been done by the time a "person" files a suit... unless you have one of those Twilight Zone stop watches that can put the board meeting in suspended animation while you track down a lawyer who can track down a judge who can and will rush over to interrogate the board and issue an injunction.

Of course this is all practically moot these days because of a case called "OIP vs County of Kaua`i" which- leaving out all the juicy stuff involving the infamous ES-177, Asing, current Councilperson and former star of the book KPD Blue (see left rail) Mel Rapozo, former Finance Director and current Grove Farm Veep and Koloa Camp evictor Mike Tressler, the Kaua`i Board of Ethics, former Police Chief KC Lum and a cast of seemingly thousands- essentially defanged OIP and turned what used to be known as the best Sunshine Law in the country into a parody of open meetings laws.

Because all a person can do is file a civil suit and seek to overturn the actions. Even if this opinion wasn't three years old it doesn't seem to mean anything as far as the Penalty section is concerned.

Although in this case the opinion appears to say that the action was "willful"- especially since Asing and Nakamura refused to even respond to OIP inquiries- who exactly is there from whom to seek the criminal penalties... which, if we understand the American jurisprudence system correctly, is what is supposed to deter people from doing it again in the future, not encourage the action over and over by essentially saying the law is a joke.

Ah, crap- now we're thoroughly pissed off. Shoulda stuck with the news.

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

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

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

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

The opinion stated that:

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

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

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

The opinion itself says that:

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

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

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

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

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

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

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

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

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

“No,” he said.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HORSESH*T OF A DIFFERENT COLOR

HORSESH*T OF A DIFFERENT COLOR: Stumblebums, troglodytes and mental midgets- oh my.

Those are just some of the words that come to mind over Mayor Bernard Carvalho Jr.'s "Goo-goo-ga-joob" response to charges he had no authority to place Kaua`i Police Department (KPD) Chief Darryl Perry on leave yesterday- an action reportedly taken after Assistant Chief Roy Asher and Ale Quibilan were the subject of a "creating a hostile work environment" complaint from- guess who- Officer Darla Abbatiello-Higa.

"Creating a hostile work environment" has cost the county millions and these guys are apparently still at it.

"Un-freakin'-believable," as one former Kaua`i official repeatedly yelled into the phone last night.

Perhaps the best line we heard yesterday came from "KPD Blue" author Anthony Sommer who wrote, regarding Carvalho, "maybe he just wants to keep the tradition of 'every Kauai mayor gets to fire one police chief' alive."

But if Asher and Quibilan are Neanderthals, it pales in comparison to Carvalho's "I am the Eggman, They are the Eggmen, I am the Walrus" statement that somehow the county charter gives him the right to place Chief Perry on leave.

Though he cites charter section 7.05, that section has 13 different provisions in it. But assuming the first one is the one to which he refers, it plainly begins with the phrase "unless otherwise provided" which, although Carvalho and real mayor Beth Tokioka disingenuously and conveniently chose not to read this part, means that the operable section, 11.04 supersedes 7.05(A). That's the section that says the police commission is the body empowered to hire and fire the chief and therefore apparently to whom he is responsible.

But not only is Carvalho tone deaf to the limits of his own authority, he apparently hasn't read the sunshine law either.

In his "statement" he explained that he contacted the chair and vice chair of the police commission and apparently discussed the matter with them. Since the mayor sits as a non-voting "ex-officio" member of all boards and commissions, this is a blatant violation of prohibitions on more than two members of a board discussing matters that are before that board, outside of a duly agendaed meeting.

The matter is on the police commission's agenda for a special "executive session" meeting next Tuesday.

Oh- and one last thing. Though the county has been tight-lipped about the type of leave Perry and the two assistant chiefs have been forced to take, one report may indicate it's not just some routine, non-disciplinary type.

Today's pay-walled Honolulu Star Advertiser reports that "(a)ll three were ordered to turn in their equipment."

You don't take away an officer's- or especially a chief's- gun and badge without some serious wrong-doing behind the action.

Another question that comes up is why if, as reported, the complaint against Asher was filed last October 24, it did not show up on the October, November, December or January police commission meeting agendas. It just goes to show how seriously the county continues to take charges like this.

We haven't been directly privy to the information that apparently came from either Abbatiello-Higa or Perry or both but it certainly wouldn’t be being spread by almost every media outlet in the state unless the source was unimpeachably "close to Abbatiello-Higa" or "has direct knowledge of the investigation" as they have characterized their source.

But the real issue is that even after efforts by current Councilmember Tim Bynum and former Councilperson Lani Kawahara to put an end to the sexual harassment that pervades the county offices, it continues.

A letter from the two dated October 13, 2010 states that the county "has repeatedly failed to respond appropriately to allegations of sexual harassment and a hostile work environment."

Yet the Carvalho administration hasn't done a thing other than have a few "training sessions." Many of the harassers- even some of those that cost the county big bucks- are still on the job in positions that actually ARE under the direct supervision of the mayor. Funny how he's willing to butt in where he's apparently forbidden by law to do so but when it comes to his own hand-picked cronies it's a "hand-off" policy that pervades.

If we didn't know better, we might think there was some kind of corruption going on in the administration.

WELL I WONDER, WONDER, WONDER, WONDER WHO

WELL I WONDER, WONDER, WONDER, WONDER WHO: The "fact" that Kaua`i Police Department (KPD) Chief Darryl Perry "is on leave" seems to be the only thing that is clear after chapter two of the latest departmental saga hit the streets.

Chapter one was the leave that was apparently forced on two assistant chiefs by Perry on Tuesday. But as to how Perry wound up on leave there seems to be about as much confusion in the press as there is silence on the part of the administration of Mayor Bernard Carvalho Jr.

The first report of Perry's "situation" came from a county press release last night and simply said:

As of this morning, Police Chief Darryl Perry is on leave and Deputy Police Chief Michael Contrades will serve as Acting Police Chief until further notice.

The local Kaua`i newspaper claims to have reached Perry who told them that indeed it was hizzonah who did the deed saying:

While the county offered no explanation in terse statements that were released Tuesday and Wednesday, Perry said late Wednesday that“the truth will come out,” and that the actions were brought about by the mayor’s office.

The pay-walled Honolulu Star Advertiser, while detailing some of the ways past chiefs have departed on less than friendly terms with the county apparently reached county KPD spokesperson Sarah Blane who told them "she was not told who placed Perry on leave."

Although the county claims it cannot say anything because it is a "personnel matter" the sunshine law says that, if appropriate in the specific case, the public's interest in the information can trump privacy concerns. That, however, would be a matter for the toothless Office of Information Practices (OIP) to determine and, even if they had fangs, they seem to work at glacial speeds.

So who dunnit?

Well if it was the mayor all we can say is "here we go again."

According to Section 11-4 of the Kaua`i County Charter

The chief of police shall be appointed by the police commission. He may be removed by the police commission only after being given a written statement of the charges against him and a hearing before the commission.

And while the power to place the chief on leave is not directly addressed, Police Commissions statewide are, according to state law, supposed to be autonomous in their dealings with the police chiefs.

But while it's not within Carvalho's powers to remove- or even place on leave- the chief, it's not for lack of wishing on his part. He has been engaged in a campaign to have the state law changed so that the chiefs of the police departments across the state would be hired and fired by the mayors, making the police commissions little more than advisory boards.

It may be of note that both Perry and the commission have gone on the record opposing Carvalho's would-be new law.

A perusal of the police commission's most recent agenda produces no recent "emergency" meeting where any executive session placing Perry on leave might have taken place and to do so would have violated the state sunshine law anyway which requires six days notice before a meeting can be held.

However this morning at 8:15 an agenda for a meeting scheduled for next Tuesday February 7- the first day one could be legally held- calls for no less than three "executive sessions."

The first, ES 5 reads in part

Pursuant to Hawai`i Revised Statutes, §92-4, 92-5(a) (2) and (4), the purpose of this Executive Session is for Mayor Bernard P. Carvalho Jr. to provide the Commission with a briefing regarding personnel and/or disciplinary actions related to notarized complaint filed with the Police Commission on 01/31/12, and for the Commission to further consider and discuss said personnel and/or disciplinary actions.

While it's not clear what "disciplinary action" Carvalho has taken it seems pretty clear it refers to placing Perry on leave because the next item, ES 6 reads

Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities and liabilities as they relate to Section 11.04 of the County of Kaua'i Charter

Charter section 11-4 of course is the one cited above about the hiring and firing of the chief being the sole kuleana of the police commission.

The third item on the 2/7 agenda reads:

Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities, and liabilities as they relate to Rule 6-1.f of the Rules of the Kaua'i County Police Commission.

But if you thought that would clarify what was going on you'll be sorely disappointed because Rule 6 is entitled "Control, Management And Direction Of The Department" and 6-1 is an incredibly long and list of the "Powers, Duties and Responsibilities of the Police Commission."

Although 6-1-3 does deal with "Investigation of Charge (sic)" it does not directly address what happens if the target of the investigation is the chief.

So what does it matter who put Perry on leave?

Well if past is prologue the county might just be in for another big settlement should Perry decide to sue for denying his rights under the charter.

To make a long story short, back when George Freitas was the chief and Maryanne Kusaka was the mayor- this during the time when Kusaka was allegedly covering up for her buddies with grubbing and grading violations by allegedly telling a Department of Public Works engineer to butt out when it came to Jimmy Pflueger and the Ka Loko Dam area that later burst during a storm killing seven people- Kusaka "removed" Freitas from his office.

She apparently got the long time secretary for Freitas and past chiefs to take his gun and badge from his desk and give it to her. There was a long list of serious charges made but when it was all over the only one the police commission upheld was that Freitas had given a ride to his girlfriend in his police car.

And in the end Freitas settled for a reported half-million dollar golden parachute and "retiring" from the force.

Hard to say what will happen tomorrow- or next Tuesday for that matter because the usual open session for decision making after executive sessions on complaint against KPD personnel is decidedly missing from the 2/7 agenda.

But one thing is clear- in his notorious quest for power Carvalho is certainly putting the county in jeopardy by usurping the commission's oversight.

DISINFECTANT APLENTY

DISINFECTANT APLENTY: The subject of open meetings and records- and of course the related Sunshine Laws- has always been near and dear to us. Nothing gets our blood boiling more than attempts by councilmembers across the state who try to claim it prevents them from doing their job, especially when they misrepresent restrictions on interactions with each other, even after the Office of Information Practices (OIP) tells them where "the line" is.

The typical complaint goes something like "I can't even go to dinner and talk to a fellow councilmember about the weather without violating the Sunshine Law." The fact is that there are "permitted interactions." They include allowing two members to talk about anything unrestricted as well as other bright lines of what can and can't be discussed unless it is done in a properly agendaed meeting.

But the main thing is- to perhaps oversimplify- that you can't talk about a matter of public policy that is- or is likely to be- before the body. And you can't use serial communications to avoid the ban.

So it irked us a little to see fellow champion of open governance journalist-blogger Ian Lind's comment on a proposed clarification of the law proposed by OIP.

After discussing the permitted interactions rules he wrote:

The result has been what I consider some absurd results, including the notion that circulating draft bills for signatures prior to introduction would somehow violate the law, despite the fact that it has nothing at all to do with whether the bill will become law or not.

Wow. As it turns out, a case we filed against Kaua`i County Council Chair Jay Furfaro for just such an infraction- apparently circulating a proposed bill to all other councilmembers at the time and even asking for "support" for it- was recently addressed by OIP and the only fact that prevented it from being an "unpermitted interaction" is that, according to then County Clerk Peter Nakamura, the cover letter and draft bill were never actually sent to other councilmembers, only addressed to them.

Otherwise, OIP said, it would have violated the sunshine law.

And that's as it should be. If you want to talk about the content of a bill, do it in public. It has nothing to do with the actual passing of the bill but rather the deliberations which eventually yield those pesky details that the bill will contain. It's called "deliberating toward a decision" and it includes all stages of public policy making from the drafting through the discussion and finally to the passage.

So how do you talk to your fellow councilmembers about proposed legislation? The answer may be contained in a notice for a "workshop" the Kaua`i Council has scheduled for next Tuesday January 24 at 9 a.m. at the Kaua’i Civil Defense Agency- Emergency Operating Center, 3990 Ka’ana Street, Suite 100

According to the notice:

A facilitated workshop is scheduled to set goals that the Kaua’i County Council would like to see achieved in the next few years and to discuss issues pertaining thereto that could include:

So far, so good. Sounds like they are finally "getting it" and want to let the public in at the planning stage rather than springing matters on us as a "done deal."

But then, to our astonishment, the agenda list 41, count 'em 41, subjects they intend to discuss, each subject so broad that each individual item could spur hours of discussion. We've listed them at the end of this post.

That also means that if the public wanted to testify on each one, assuming they'd be given the usual six minutes to speak on each, just one person could sit there for just over fours hours... although, because all 41 are listed under one agenda item they might decide to give only one six minute time allotment for all of them. That of course would leave about nine seconds a subject.

We did ask OIP for a down and dirty opinion of the sufficiency of the agenda and were told that it looked okay, although they did not address the public testimony aspects.

But the upshot is that rather than complain that they are prevented from discussing proposed legislation, this format- not with 41 subjects but with let's say with just one or two- is the way it's supposed to work. You put it on an agenda for discussion and have that discussion in public, not behind closed doors.

That's the irksome part of all this. What those who would allow these kinds of things to be done in private are saying is that, because it is a little more hassle to put a subject on the agenda and discuss it in public, we should chuck the whole concept of discussing public policy in open session and allow pols to collude behind closed doors.

The message we should be sending officeholders is this: although you apparently think that the council is your own little private fiefdom where you are a god of lawmaking unto yourself, you are, in fact, in the line of work of deciding public policy with the key word being "public." If you want to make decisions by yourself, go into the private sector and then you can make all the decision about selling your widgets as privately as you want to.

But if you want to hold public office you'd better get used to discussing public policy with that pesky public listening to the deliberations that go into your decision making.

Is that asking too much? Apparently yes.

----------

The following is the list of subjects to be discussed at the workshop:

1. Drug abuse prevention and treatment and interdiction of illegal drugs
2. Traffic congestion relief/multimodal integrated transportation system
3. Open space acquisition! preservation, including coastal and Mauka lands and access
thereto
4. Tourism, including sustainable tourism
5. Economic development
6. Island-wide information technology & management systems
7. County information technology & management systems
8. Agriculture & biotechnology
9. Solid waste management, Materials Recovery Facility (MRF), recycling programs, and recycling facilities
10. Military
11. Voter registration
12. 2012 State Legislative issues, including Transient Accommodations Tax (TAT)
13. Real property tax system
14. Town planning
15. Affordable housing
16. County budget; Operating and Capital Improvement Projects (CIP)
17. Containment of sprawl and protection of open spaces and vistas
18. Subdivisions, grading and drainage
19. Small businesses
20. Sustainability and sustainable communities
21. Park planning, development and maintenance
22. Planning issues; General Plan Update, Development Plans, Comprehensive Zoning Ordinance, Special Management Areas
23. Community outreach
24. Energy self-sufficiency, renewable energy, and renewable energy projects
25. County infrastructure
26. Preservation of “places of the heart”
27. Bikeways
28. Underground utilities
29. County as a model—”Walking the Talk”
30. County efficiency and cost control
31. Elderly programs & outreach
32. Youth programs & outreach
33. Timeshare
34. Bed & Breakfast and Transient Vacation Rentals regulations
35. Wastewater systems
36. Water systems
37. Public safety issues; police, fire and civil defense
38. Risk management
39. Public transportation
40. Intra-governmental relations
41. County Human Resource Management

GOO-GOO-GA-JOOB

GOO-GOO-GA-JOOB: Apparently all is not well on the SS Minnow.

Seems the Skipper's "little buddy" went temporarily insane and deviated from the script prompting a dressing down for daring to do so on Wednesday's "episode."

It was just before lunch when the Skipper, played by Kaua`i County Council Chair Jay Furfaro, had another of his patented, blowhard, conniption fits of pomposity chiding Gilligan, played by local newspaper government reporter Leo Azambuja, for daring to write something that wasn't pre-approved by Furfaro.

Never known for his knowledge of- or adherence to- the Sunshine Law, Furfaro has continued the tradition of his predecessor, Kaipo Asing, in abusing the law to stifle discussion he doesn't like by arbitrarily and capriciously deciding that such discussions are not "sticking to the agenda item," as the law requires.

The fact that the law is supposed to be liberally construed towards openness never comes into the discussion.

So in typical fashion, Furfaro decided on Wednesday that, despite the fact that it wasn't on the agenda, he was going to discuss the appointment of long-time council "fixer," Rick Watanabe, to the position of County Clerk. And since it wasn't on the agenda he announced he was using what he calls "personal privilege"- a term invented some years ago that loosely translates to "illegal but I'm going to do it anyway" - to talk about it anyway.

Saying "I'd like to congratulate ourselves," he described a supposedly "wide search" that yielded more than 20 candidates in what he and other councilmembers praised as a process that was "historic" for its "openness," despite the fact that none of the names of the 20- nor the 5 finalists- has been or is planned on being released, making the process, for all intents and purposes, the same as always- a backroom deal discussed exclusively in closed-door executive session.

But the real howler was when, saying he had prepared a "press release" regarding the appointment, he actually chided Azambuja for having the nerve to include information that wasn't in his press release in the article in the paper announcing Watanabe's appointment.

Calling it an "editorial" Furfaro lit into "the media" saying "you should print the press release as such," and presumably no other unapproved information along with it.

Azumbuja had the nerve to point out that, before the appointment was announced, Watanabe had said he wasn't interested in the job.

Oh- and he want into a long explanation of the various salaries involved including not just Watanabe's now as County Clerk but the salary cut taken by former County Clerk Peter Nakamura who according to the article is now making $29,420 less in his new job as a "senior planner" in the planning department after he was apparently fired by the council following a series of public allegations of misconduct, a harassment lawsuit and a string of executive sessions to discuss his "job performance."

For the record Nakamura says he chose to take the new job at an almost $30,000 pay cut. Councilmembers have essentially refused to discuss the end of Nakamura's tenure saying it was a "personnel matter" and to do so would violate Nakamura's privacy.

Furfaro insisted that Watanabe had "changed his mind" about the clerk job saying "heck, even (Republican candidate for President Mitt) Romney changes his mind," chiding the media by saying he is always available for press inquires.

Furfaro has consistently refused to answer our email queries for the past three-and-a-half years.

But, being so presumptuous and pompous as to think that the press is there to be his own personal megaphone aside, the Sunshine Law violation is not just blatant but the apparent irony of Furfaro's violation in cutting off councilmembers for speaking "off agenda"- as we described above- and then claiming some kind of personal privilege to do the same, is lost on only one person- Furfaro.

In a followup to yesterdays PNN's news coverage of charges of mismanagement by and maltreatment of employees of Prosecutor Shaylene Iseri-Carvalho, we mentioned an Office of Information Practices (OIP) ruling that, a year and a half after the incident, ruled that then Chair Kaipo Asing was wrong to have cut off Councilmember Tim Bynum when he questioned Iseri in May of 2009.

We have since been directed to OIP Memo 11-7 which says that:

To the extent that Requester’s line of questioning wouhttp://www.blogger.com/img/blank.gifld have related to whether other sources of funds existed for the VOCA program so that the grant monies did not need to be used for that program, we believe that the line of questioning would have been reasonably related to the agenda item and thus would not have violated the Sunshine Law... (B)ased upon our review of the May 6 meeting minutes we believe that the nexus that Requester subsequently drew between the agenda item and his line of questioning was sufficient under the Sunshine Law to have allowed questioning reasonably related to whether other sources of funds precluded the need to apply the grant monies to the VOCA program.

We point this out because it is archetypical of the type of thing that Furfaro- despite his protestations to the contrary- has continued to allow and even use himself to stifle discussion.

Although the extent of his abuse of the provision in the Sunshine Law that says that discussions must pertain to an agenda item hasn't risen to the heights used by Asing during his notorious 2009-10 feud with Bynum over process and rules, since becoming chair upon the electoral ouster of Asing, Furfaro has, over and over, allowed Councilmember Mel Rapozo- who, along with his political ally Iseri, is a political enemy of Bynum's- to interrupt Bynum and try to stop whatever Bynum is saying that Rapozo doesn't want said in public... especially criticism of Iseri.

It all comes down to something that, on Kaua`i, has been ignored and even apparently intentionally flouted ever since council meetings have been televised when it's convenient in order to prevent certain potentially embarrassing information from reaching the public.

The Declaration of Policy and Intent- the very first paragraph of the Sunshine Law, HRS Chapter 92-1 says, in part,

The formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:

(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.

If we had our druthers that statement would be made into a poster and hung on the wall in the council chambers. Or perhaps tattooed on each councilmembers forehead so that they would see it every time they looked at each other.

But rather, every councilmember has at times bemoaned the existence of the Sunshine Law, especially the part that prevents more than two of them them from discussing public policy behind closed doors.

There's a reason for that provision. It's there so that members of the public are privy to discussions that lead to the laws that govern our lives.

We have yet to hear a good explanation for why we should allow this to be done in "back rooms"- smoke-filled or not- other than that it would be "easier" and that people would be more likely to speak up if they know no one is watching.

Exactly.

Listen up elected and appointed government officials. Maybe you didn't get the memo. This is not your own private little fiefdom. It is government and you are determining public policy and people deserve to hear ALL of the thoughts and reasoning that go into your decision-making so that they can determine whether you are the one they want representing them when passing the legislation that rules their lives.

They want to know that your reasons indicate you are serving for the greater good- not for your uncle's wallet. And we want to know you can articulate how you reached your decision. As your math teach used to say: show your work.

If it is "politically embarrassing" or something you'd rather people didn't hear you say, perhaps you shouldn't say it.

It's the height of hypocrisy to cut off councilmembers for speaking "off agenda" with some obviously convoluted, strict interpretation of what the agenda item is and then claim you have "personal privilege" to talk about anything you damn well please between agenda items.

When it comes to convincing our seven stranded castaways of all this, well, let's just say it's an uphill climb.

(PNN) PROSECUTOR ISERI UNDER FIRE FOR MISMANAGEMENT AND MALTREATMENT OF EMPLOYEES OF VICTIM WITNESS PROGRAM

(PNN) PROSECUTOR ISERI UNDER FIRE FOR MISMANAGEMENT AND MALTREATMENT OF EMPLOYEES OF VICTIM WITNESS PROGRAM; LETTER TO COUNCIL FROM LAID-OFF COUNSELOR CHARGES PROGRAM IS INEFFECTIVE, IN DISARRAY

(PNN) 17.

That's the answer usually given by former and current employees at the Office of the Prosecuting Attorney (OPA) to many of the questions as to why there are so many charges of mismanagement and ill-treatment of employees in Prosecutor Shaylene Iseri-Carvalho's office.

That's because 17 is the number of "Deputy Attorneys who had been hired and either terminated or left on their own accord from OPA" according to a scathing letter to the Kaua`i County Council by Erin Wilson, a former Victim Witness Counselor at the OPA.

Wilson's letter- which is published here in full (below at the end of this article)- was submitted as testimony on a communication at yesterday's (January 11, 2012) council meeting. The communication asked for Iseri to come before the council to discuss "the status of the Victim Witness Program and Office of the Prosecuting Attorney."

The matter was deferred for two weeks until January 25 however because Iseri submitted a letter saying she was "sick," according to Council Chair Jay Furfaro.

The issues Iseri will discuss in two weeks, according to the agenda, include:

1) Case backlog caused by furloughs.
2) Funding - how utilized and whether sufficient to address concerns.
3) Levels of staffing and level of service for the Victim Witness program.
4) Caseload open, closed and pending

The issue dates back to May 6, 2009 according to Councilmember Tim Bynum when Iseri was summoned to appear before the council to answer the same questions but never did because, Bynum said the minutes of that meeting show, he was cut off from his line of questioning by then Council Chair Kaipo Asing.

Asing claimed Bynum's questioning of Iseri was a Sunshine (open meetings) Law violation because it was off the subject of the agenda. However according to Bynum, more than a year later the Office of Information Practices (OIP), which oversees the Sunshine Law, ruled his line of questioning did not violate the law.

Bynum famously feuded with Asing over many matters of council process and rules during Asing's tenure and is currently involved in a well-known, long-standing feud with Iseri dating back to her days on the council with Bynum.

Until yesterday the latest chapter in the conflict has been what Bynum claims is his malicious, first-of-its-kind prosecution by Iseri for a permitting violation, apparently spurred by Bynum having had a rice cooker in a family room of his home which, Iseri claims, is a zoning violation because technically, with the presence of a sink, it created a unpermitted separate living unit.

Wilson spoke of the number "17" by saying:

After asking many employees at OPA why the delay on the above referenced case and others I had been assigned to, I was consistently referred to one number...17. This number was significant because there had been 17 Deputy Attorneys who had been hired and either terminated or left on their own accord from OPA. 17 was a significant number because the prosecutor’s office is a relatively small office to begin with. 17 was a significant number because all of these 17 former employees had left the office since the current OPA Leadership was elected into office. Most importantly, 17 was a significant number because it answered some of my questions about why a large backlog of cases had either sat for long periods of time without victims being contacted, defendants being indicted, or passed on from deputy to deputy through the revolving door at OPA.

Some of the allegations in Wilson's letter are that:

- NOTHING could be done without the direct approval and oversight of the elected prosecutor. In fact, office staff received an email from the Prosecutor’s Office leadership, stating that staff was not to send emails to any outside agencies unless discussed with the OPA leadership prior to sending. Furthermore, OPA Leadership asked to be cc’ed on all other emails to outside agencies.

- The process by which OPA would receive completed investigations and then assigned to the appropriate Deputy and Victim Witness Counselor was ambiguous. The time frame with which the assignment would take place was even more vague and varied week to week. Sometimes cases would be reviewed by the Prosecutor and assigned to a Deputy Attorney and Victim Witness Counselor right away. Other times, as I found out with my caseload, would take months upon months before even being assigned to a Deputy or Counselor for any action to be taken.

- In a letter to County Council dated January 19, 2011 regarding furloughs, the Elected Prosecutor, Shaylene Iseri-Carvalho, states that as a result of furloughs,

'OPA, the sole agency to file the criminal documents with the court and/or prepare for hearings, wasn’t able to accomplish its duties in a number of cases because there was insufficient staff to prepare them in an expedited and timely manner.'

I beg to differ. I would suggest instead, it is the constant revolving door of employees that has caused a tremendous backlog of cases at OPA. Even the office letterhead is constantly changing and currently reflects that about half of the Deputies that were listed on the above referenced letter, dated January 19th, 2011, have left OPA within the past year. All, I would suggest, to the detriment of Kauaiian families and community.

- The elected prosecutor demoted the former Victim Witness Director, Diana Gausepohl-White and effectively eliminated the Director position altogether. What did this mean for the Victim Witness program? It meant that our Victim Witness program no longer had a leader in Victim Witness services to provide oversight of day to day operations and management of the program. It also resulted in drastic changes in the scope of services that Victim Witness Counselors were allowed to offer... After the Victim Witness Director position was eliminated, these components of our comprehensive program diminished or ceased to exist.

- The current OPA Leadership also promotes the perception that Victim Witness Counselors have little importance within the office and are perceived as such by many of the attorneys, clerks, and other staff at OPA.

- I am no longer employed with the Prosecutor’s Office as I was informed on November 9th that I was being laid off and my position as Victim Witness Counselor was being eliminated from the office due to “lack of work”. This “lack of work” described in the letter that OPA gave me is in stark contrast to the much needed Victim Witness Counselor that the elected prosecutor requested monies for, in her letter (just a few months ago) to County Council dated June 13th, 2011. Despite this “lack of work” the office has hired several people including a Receptionist, a Process Server, two (2) Law Clerks, and a Law Office Assistant position which was created for the previous Secretary--all since my last day of employment, November 23rd, 2011. Furthermore, OPA has done nothing to preserve my employment despite that the County of Kauai Employee Handbook (page 17) Layoff Policy states that they will give 90 days’ notice prior to instilling a Reduction in Workforce or Layoff. I am certain that the victims who call OPA on a daily basis requesting an update on their case status or the victims of the most recent surge of crime on Kauai, could have used the services I provided as a Victim Witness Counselor.

At yesterday's meeting, while Bynum was trying to give the history of the issues being aired before the council and the Asing/Sunshine Law/OIP matter, Councilperson Mel Rapozo, famously an extremely close ally and employee of Iseri's, tried to stop Bynum from speaking by claiming the statement he was making violated the Sunshine Law, interrupting Bynum twice and appealing to Furfaro to stop Bynum.

After getting huffy at the notion that he was being accused of ducking the issue- even though Bynum said no such thing- Furfaro allowed Bynum to finish his statement.

Rapozo serves summonses for Iseri's office despite a ban on councilmembers doing more than $500 worth of work for the county. He and Iseri have thus far successfully circumvented the provision by breaking the contracts up into parcels of less than $500 each and also have claimed that Rapozo is the only one on the island who can do the work based on the fact that no one else bid on it.

Part of the intent of the law is to make sure that councilmembers cannot use their power to intimidate others from bidding on a contract upon which the councilmember is bidding.

Council Vice Chair JoAnn Yukimura- who sent the communication to the council requesting Iseri's presence- referred to Wilson's letter and asked that staff contact former Victim Witness Director, Diana Gausepohl-White and request that she be present to testify at the January 25 meeting.

Iseri is up for reelection this year and will face current Deputy County Attorney with the Kaua`i Police Department, Justin Kollar.

-------

Erin Wilson's letter to the Kaua`i County Council


Date: January 10, 2012

To: Jay Furfaro, Chair
Joann Yukimura, Vice Chair
Tim Bynum
Dicky Chang
KipuKai Kuali’i
Mel Rapozo
Nadine Nakamura

From: Erin Wilson, Former Victim Witness Counselor at OPA
Re: Council Meeting Agenda Item C 2012-08

First of all let me say thank you for your time and providing an opportunity for public comment on the Office of the Prosecuting Attorney (OPA) and Victim Witness Program (VWP) at your meeting today. I believe my circumstance is unique to any other and I appreciate the opportunity to share some of my experiences with you in hopes that you will consider what I have to say as an opportunity to improve services at OPA and the Victim Witness Program.

I am a single mom who moved to Kauai in August 2011 from Colorado with my 6 year old son because I was offered a position as a Victim Witness Counselor at the Office of the Prosecuting Attorney. This was in my mind, a dream job, where I could use my passion for helping others, advocating for victims of crime. Within a few days of working, I was assigned to work on the most serious of crimes including murder, negligent homicide, assault, robbery, theft, etc. In this position, my responsibilities included making contact with victims to find out how they were coping, finding out what their needs are, helping victims apply for Crime Victim Compensation, finding local resources, getting victims registered for SAVIN (a victim notification system), and let victims know about other civil remedies. Most importantly, my job was to listen to our victims.

I quickly learned at OPA that NOTHING could be done without the direct approval and oversight of the elected prosecutor. In fact, office staff received an email from the Prosecutor’s Office leadership, stating that staff was not to send emails to any outside agencies unless discussed with the OPA leadership prior to sending. Furthermore, OPA Leadership asked to be cc’ed on all other emails to outside agencies. I was very surprised by this as I had not worked in such an environment where communication with related agencies (agencies we interface with) was restricted in such a manner.

The process by which OPA would receive completed investigations and then assigned to the appropriate Deputy and Victim Witness Counselor was ambiguous. The time frame with which the assignment would take place was even more vague and varied week to week. Sometimes cases would be reviewed by the Prosecutor and assigned to a Deputy Attorney and Victim Witness Counselor right away. Other times, as I found out with my caseload, would take months upon months before even being assigned to a Deputy or Counselor for any action to be taken.

In one case that was assigned to me, there were several victims of a violent crime. Prior to making initial contact with the victims, I reviewed the police reports so as to be fully prepared when I contacted the victims and their families, being fully aware of what happened. What I was unable to prepare for was the anger and frustration these families felt when I met with them the first time in our office and learned that after 17 months, I was the first person to contact them from the Prosecutor's Office. In those 17 months, none of the victims or their families had been contacted by anyone at the Prosecutor’s office to offer condolences (there had been a death resulting from the crime) or inform the families about their rights to Victim Witness services, Crime Victim Compensation, or any other related community services that they were entitled to. It was not that the Deputies or Victim Witness Counselors were not working hard on their caseloads, but rather, the victims’ receipt of services could have occurred much earlier in this case and many others, had the case(s) been assigned by OPA Leadership in a timelier manner. Many of the cases I came across had sat waiting for screening and prosecution or declination for long periods of time. Cases had sat for so long that in some situations, the statute of limitations had run out on certain counts of crimes and the defendants could no longer be charged, leaving victims helpless.

After asking many employees at OPA why the delay on the above referenced case and others I had been assigned to, I was consistently referred to one number...17. This number was significant because there had been 17 Deputy Attorneys who had been hired and either terminated or left on their own accord from OPA. 17 was a significant number because the prosecutor’s office is a relatively small office to begin with. 17 was a significant number because all of these 17 former employees had left the office since the current OPA Leadership was elected into office. Most importantly, 17 was a significant number because it answered some of my questions about why a large backlog of cases had either sat for long periods of time without victims being contacted, defendants being indicted, or passed on from deputy to deputy through the revolving door at OPA.

In a letter to County Council dated January 19, 2011 regarding furloughs, the Elected Prosecutor, Shaylene Iseri-Carvalho, states that as a result of furloughs,

“OPA, the sole agency to file the criminal documents with the court and/or prepare for hearings, wasn’t able to accomplish its duties in a number of cases because there was insufficient staff to prepare them in an expedited and timely manner.”

I beg to differ. I would suggest instead, it is the constant revolving door of employees that has caused a tremendous backlog of cases at OPA. Even the office letterhead is constantly changing and currently reflects that about half of the Deputies that were listed on the above referenced letter, dated January 19th, 2011, have left OPA within the past year. All, I would suggest, to the detriment of Kauaiian families and community.

There was another significant factor that limited the scope of Victim Witness Services at OPA. The elected prosecutor demoted the former Victim Witness Director, Diana Gausepohl-White and effectively eliminated the Director position altogether. What did this mean for the Victim Witness program? It meant that our Victim Witness program no longer had a leader in Victim Witness services to provide oversight of day to day operations and management of the program. It also resulted in drastic changes in the scope of services that Victim Witness Counselors were allowed to offer. For example, before the Director position was eliminated, the VWP offered services such as Outreach programs, crime scene support upon request, alliances with multiple community agencies. After the Victim Witness Director position was eliminated, these components of our comprehensive program diminished or ceased to exist. Another downfall to eliminating the Director position was the inability to maintain relationships with agencies that the VWP interfaces with on Kauai, in the state of Hawaii (ex. Victim Witness Coordinator meetings) as well as nationwide organizations such as National Organization for Victim Advocacy (NOVA). These former relationships made our Victim Witness program at the Prosecutor’s Office stand out among others in the Pacific region.

Losing the Victim Witness Director at OPA, we also lost accountability for an equitable distribution of workloads among the Counselors. For example, each Counselor is assigned to certain types of cases such as Property, Crimes Against Persons, Firearms, etc. without regard to the intensity of the case or the needs of the victims and witnesses. The current OPA Leadership also promotes the perception that Victim Witness Counselors have little importance within the office and are perceived as such by many of the attorneys, clerks, and other staff at OPA. For example, in one conversation I had with a Deputy Attorney at OPA, two Victim Witness Counselors were referred to as “worthless.” In a separate conversation I had with a Prosecutor, it was stated that ‘Victim Witness Counselors were not needed because deputy attorney’s already make contact with their victims, without the help of a Counselor.’ Based on my experience working at OPA, I disagree. Furthermore, the notion that the Deputy Prosecuting Attorneys have the same job responsibilities as a Victim Witness Counselor, is misleading.

Other responsibilities of the Victim Witness Director that also took a backseat included the onboarding of new Counselors, ongoing training of new skills, knowledge of trends in the field, and ensuring that advocates took turns attending national conferences.
I am no longer employed with the Prosecutor’s Office as I was informed on November 9th that I was being laid off and my position as Victim Witness Counselor was being eliminated from the office due to “lack of work”. This “lack of work” described in the letter that OPA gave me is in stark contrast to the much needed Victim Witness Counselor that the elected prosecutor requested monies for, in her letter (just a few months ago) to County Council dated June 13th, 2011. Despite this “lack of work” the office has hired several people including a Receptionist, a Process Server, two (2) Law Clerks, and a Law Office Assistant position which was created for the previous Secretary--all since my last day of employment, November 23rd, 2011. Furthermore, OPA has done nothing to preserve my employment despite that the County of Kauai Employee Handbook (page 17) Layoff Policy states that they will give 90 days’ notice prior to instilling a Reduction in Workforce or Layoff. I am certain that the victims who call OPA on a daily basis requesting an update on their case status or the victims of the most recent surge of crime on Kauai, could have used the services I provided as a Victim Witness Counselor.

I request of you today, to re-evaluate the Victim Witness Program and consider that victims are not being served in this community in the full scope that they should be served, due to the changes and restraints that the elected prosecutor is putting on the Counselor’s abilities to communicate with local agencies and organizations, conduct outreach to victims, and serving victims in a timely manner through the prosecution of crimes. I believe that the County of Kauai has excellent resources to support the victims of our community. My hope is that my words will be a starting point for restoring the full scope of the Victim Witness Program back to its intended purpose for our victims, community, and ohana.

Sincerely,

Erin Wilson

ROOM AT THE TOP

ROOM AT THE TOP: When former County Clerk Peter Nakamura was fired- or, according to some, quit amidst council executive-session-protected investigations of various and sundry allegations of wrong doing- we didn't really expect to hear anything until the decision on a new clerk was a "done deal."

So when our sources at council services told us that ads were placed in both the local and Honolulu newspapers soliciting applications and that there were a significant number of applicants- even from the mainland- though it was nice to think that there might be a little public scrutiny of the list, we didn't hold out much hope.

And we haven't been disappointed in our pessimism.

The job description of the position of clerk is not just "the council's lackey" even though Nakamura's stint under former Chair Kaipo Asing might have given that impressions. He- or she (yeah- that'll happen)- is also the county's chief elections officer and has numerous other important public duties and responsibilities.

But of course the process- and the names of the applicants- has been a tightly held secret with closed-to-the-public, executive sessions the order of the day for review of those seeking the job.

But given the brouhaha over the release of the judicial appointment list and the Office of Information Practices' (OIP) original stance that the names should have been made public- with which a circuit court judge agreed before the judicial selection committee decided was the best policy on their part after all- we wondered if there might be enough of a public interest in release of the names of county clerk applicants to overcome the privacy concerns in the Uniform Information Practices Act (UIPA), HRS Chapter 92F.

Silly wabbit.

We gave a call to the attorney of the day at OIP and got an interesting if negatory answer. Staff Attorney Carlotta Amerino wrote:

This email responds to your telephone call to the Office of Information Practices (OIP) on November 17, 2011. You explained that the Kauai County Council is in the process of filling a vacant county clerk position and would be meeting on this matter on November 21. You asked whether you may know the names of all the applicants.

The Uniform Information Practices Act (Modified), Chapter 92F, Hawaii Revised Statutes (UIPA) requires generally that government records are available to the public. HRS section 92F-11. However, the UIPA does not require disclosure of records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. HRS section 92F-13(1). Applications for government positions carry significant privacy interests under HRS section 92F-14(b)(4), which, when balanced against the public interest in disclosure, have often outweighed the public interest. See OIP Ltrs. No 90-14, 91-8, and 95-2. In Opinion 03-03, OIP found that a list of judicial nominees could be disclosed publicly, but that opinion was based in part upon the fact that judges have a great impact upon the public.

The UIPA also allows government agencies to withhold information if disclosure would cause the frustration of a legitimate government function. HRS section 92F-13(3). While OIP has not been asked to issue a formal opinion on your specific question, and has not discussed this matter with the County Council, it would not unreasonable for the Council to invoke the "frustration" exception if it feels that qualified applicants would not apply for government jobs if that fact is made public even for the unsuccessful applicants.

I hope this information is helpful.

Carlotta Amerino
Staff Attorney

Basically it's not really an answer because although the judicial selection process is cited, that process is detailed in both the Hawai`i State Constitution and in law and administrative rules whereas the county clerk simply serves "at the pleasure" of the council

That leaves what Amerino refers to as the "frustration" exception which says that things may be kept secret if revealing them would "frustrate a legitimate government function."

In the case of the judicial nominees, Governor Neil Abercrombie claimed the frustration clause in that it would have a "chilling effect" on attorneys causing many to decline to apply. But even that doesn't seem to be the case with the county attorney position any more than any other job where one might not want their current employer to know they were seeking another job. And, of course, in any event, the court struck down such an exception in the judicial selection case.

We haven't formally requested the list of applicants mostly because it would take at least a few weeks just to get an answer from the council- which we know would be "no" anyway- and then we would have to submit that refusal to the OIP for disposition and they are so "busy" and toothless these days we'd be lucky to get a "formal opinion" at all and if we did it could take months if not years.

And by then, most likely we'll have a new clerk.

It may be best to wait for the appointment and then ask for the list- we might have more of a chance then because there would be no way the release could effect the outcome due to political pressures, which Amerino suggested to us on the phone might be applicable in this situation.

It's been noted in national surveys that Hawai`i has one of the best sunshine/open records laws in the country- and one of the worst records for actually keeping meetings open and releasing records.

The minotaur thinks the labyrinth is working just the way it's been designed, thank you very much.

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.

OXYMORONICALLY SPEAKING

OXYMORONICALLY SPEAKING: Little kids and we old futs have something in common- we both refuse to fall for BS conundrums.

While sophomoric angst-ridden teens may obsess over questions like "if a tree falls in the forest and no one is there to hear it, does make a sound " any wise-ass seven year old will suggest using a tape recorder to show it does and the crotchety crowd will just say "of course it does- what are you an idiot?".

But today that very question- or an approximation thereof- presents itself by asking "if a newspaper that has a 'paywall' sues the the governor's for his refusal to release the list of judicial nominees, does anyone hear about it?".

The answer is only if you find out through "'Civil Beath'" which, though similarly paywalled, offers as many free one-month subscriptions as you have email addresses.

That's a long way to go to say that the news itself is certainly welcome in that the Honolulu Star-Advertiser (S-A) is dipping into it's monopolistically-engorged pockets to do what they should have done the first time Governor Neil Abercrombie decided to flout tradition- and an Office of Information Practices (OIP) opinion- by refusing to release the list (after state senate approval).

The suit itself- provided in copy-protected form by Civil Beat which has come under fire for copy-protecting other public documents- attempts to refute the governor's claim that to release the list would, as the law says, "frustrate a legitimate government function"- that of appointing judges from a list provided by a judicial selection committee.

But strangely enough the suit fails to try to refute Abercrombie's contention other than essentially saying "no it doesn't."

Are we to assume the hearing will feature ten year old attorneys alternately screaming "yes it does... no it doesn't... yes it does... no it doesn't." until one grabs the others hair and the other bites the first one on the leg?

Abercrombie claims is that attorneys will be less willing to submit their names to the selection committee because they risk the ire of their employers, partners or even clients- both current and future- by letting them know they might be leaving.

But the S-A suit simply ignores the argument itself by refusing to address either of the two issues- first, whether a public announcement will in fact cause problems for the applicant and two, if that's true- whether it rise to the level of "frustration of a legitimate government function."

Now we're normally an unqualified supporter of the preamble to the Sunshine Law which presumes that government documents are to be made public unless they are specifically exempted by law- and that the law should be "liberally applied."

But we've got to admit that, after talking about this with five different attorneys over the past few months, we have come around to the governor's thinking. All five said that the fact that their names would become public has colored their decisions as to whether or not to apply for a judgeship.

The five include lawyers, who both work with partners and without, are in the government's employ and in private practice and do both criminal and civil law. And all said that the release of their names is a consideration and some said that indeed it has influenced their decision not to apply.

That means that- our admittedly small sample notwithstanding- the only question is whether, assuming the "fact" that what Abercrombie claims is true, does it actually "frustrate a legitimate government function?".

Whenever we've seen these kinds of determinations the "function" is stated. In this case it would be "the appointment of judges by the governor."

But the problem for the governor is that the law does not state that his job is to appoint judges from the widest possible pool, just that he pick from a list provided by the selection committee.

Attorneys will make the decision as to whether to seek a judgeship for any number of reasons. Certainly the usual drop in pay is a consideration so should the law require the state to make up the difference to widen the pool? Suppose the appointment requires a move from a neighbor island to Honolulu and the attorney has children who are in an excellent public school? Should he or she be compensated for having to put them in a private school if there is no comparable public school available?

Of course not. The legitimate government function is to provide a list, not to insure that the list includes every attorney in the state who otherwise would consider a judicial appointment.

The governor's claim regarding the release of the names of attorneys who aren't selected may be true. But it is for all intent and purpose it is irrelevant because unless the attorney general comes up with a heretofore unspoken rationale to say that this actually frustrates a legitimate government function Abercrombie's claim doesn't really stand up to scrutiny.