BREEDING DISCONTENT: Did you ever take a substantial vacation on the mainland and upon return feel like you not just traveled 2000 miles but 25 years back in time, especially in terms of our various island institutions’ mindsets.
It’s simply amazing to see our legislators refuse equal state-granted civil rights for gays and lesbians while almost every state- even those with constitutional bans on same-gender “marriage” – have granted civil unions either voluntarily or upon court order... Most- even some the most rabid bigots- are slowly and inexorably giving up the monopoly on the word marriage itself.
It boggles the mind how while more states each year ban corporate campaign contributions and enact “CleanElections” public election financing, many of our lawmakers are actually trying to raise the corporate money ceiling and repeal even the pilot public finance program on the Big Island.
So much for the islands’ reputation- no not the ad-nauseum repeated “big lie” that we are “anti business” – of being the most progressive of all states, especially in the second congressional district.
The disconnect is even worse when it comes down to the most traditionally reactionary of our institutions- our police departments.
This week Larry Geller at Disappeared News has been highlighting the Big Island’s PD’s use of a taser to break up a high school fight. Despite the fact that reports on their lethality blanket the mainland press, our PDs- especially here on Kaua`i- are living in some world where tasers are still considered “non-lethal” and, instead of being used as they should be- only to avoid using “deadly force” (read: gun)- they are used for crowd control.
But don’t try to point these things out or you’ll be pilloried if not tased yourself..
Take the case of Maui State Rep. Joe Bertram III, (D-11th Mäkena, Wailea, Kïhei), who “dared” to echo our- and the US General Accounting Office’s – objections to and ridicule of the nationally discredited laughing-stock of the ‘just say no” aspects of the useless and lost “war on drugs”- the D.A.R.E program.
According to Derrick DePledge’s “Notebook” blog post last Friday
Bertram sent a letter to Maui police on Wednesday suggesting, in these tough economic times, that they stop funding Drug Abuse Resistance Education and the marijuana eradication task force program.
The representative, who wants to expand the state’s medical marijuana program, wrote that DARE has proven unsuccessful and the marijuana eradication program “infringes on the privacy of medical marijuana patients and the noise is a disturbance of the peace.”
Maui police, in a press release today, were not down with the ideas:
The Maui Police Department’s response from Deputy Chief Gary Yabuta is, “We were quite aware of Representative Bertram’s position on the legalization of marijuana issue; however, we find his criticism of the DARE Program offensive.”
Offensive? What kind of response is that- is that the best they can come up with?
Seems like they’ve been taking PR lessons from Kaua`i Chief Darryl Perry who started off on the wrong foot when he and then Police Commission Chair Tom Iannucci wrote some equally-inane, provocative newspaper articles.
When local columnist Juan Wilson dared to criticize their attitude they refused to clean up their act and in fact made sure Wilson’s column was killed by the sycophantic local newspaper.
Bertram is certainly gutsy, brash and outspoken and it’s possible he pissed off the MPD and PD’s in general when, according to another blog post from DePledge last week, he had the temerity to condemn the practice of arresting so-called “on line predators” for soliciting not actual minors but under cover police detectives
He called it an “imaginary crime” and later said that although it was “a poor choice of words” according to DePledge, “he would not back down from his main criticism of the law, which he described as the policing of thoughts since no minor was involved”
Attacks from local rhetoric-spewing Republican boss Willes Lee notwithstanding, it’s only in the last decade or so that American jurisprudence has allowed the once ridiculed notion of having “thought police” to become an actuality.
Of course Bertram was absurdly painted as being “pro child molester” even though he was defending a once-sacred constitutional right that has been tossed aside but this couldn’t have endeared him to many in law enforcement who chose the expediency of shredding the constitution over the legitimacy of good police work.
On the neighbor islands we occasionally elect not just unabashed progressives but intellectually honest legislators. It’s no mistake that we sent Patsy Mink to D.C. for years and have sent Gary Hooser, Mina Morita, Kalani English and others to butt heads with the likes of Sam Sloam and even Democratic representatives of the right-wing-nut privileged, mainland transplants who populate Honolulu.
So it’s especially head-scratchingly baffling that, despite the obvious bent of the electorate, at the same time we allow our governmental institutions- our councils, planning departments, police departments and the like- to operate like a hunting party of knuckle-dragging Neanderthals?
It’s understandable how city and county-based legislators are so blinded from hanging out in the city core all the time and hearing exclusively from people on O`ahu that they can think they are serving the will of the whole state. The city people have the access that rural O`ahu denizens and more so ocean separate neighbor islanders don’t.
So what allows the neighbor island institutions to be so reactionary when the people are seemingly a lot more intellectually honest?
Ordinarily, at least over time, local institutions will catch up with the will of the people. It takes a particularly uninvolved apathetic populace to countenance a fully entrenched corrupt institution that maintains the status quo.
And we “laid-back” islanders certainly resemble that remark.
Monday, April 20, 2009
Friday, April 17, 2009
PUPPY LOVE
PUPPY LOVE: If we had a dollar (inflated from the traditional nickel) every time a federal, state or local legislator spoke the words “these tough economic times” as they prepare their budgets this year, they wouldn’t be.
But here on Kaua`i that doesn’t seem to stop the county council from extending the financial teat to every Tom, Dick and Harry Inc. coming in for suckle.
The developer and tourism industry crowd all seem to be adamant free marketeers and liaise-faire zealots until it comes time to line up for a government handout. Social safety net food programs for keiki, kupuna and cripples be damned- the adults at the C of C must be served- and served first.
Exhibit one- this past Wednesday’s council committee meetings.
The first recipient rat hole was the new “Kaua`i Marathon” coming up in September . Now no one is really complaining much about having a marathon on Kaua`i except those who will have to negotiate around the closed off Kalaheo and Lawa`i back roads that day or the residents- who were never asked- who apparently won’t even be able to leave their driveways.
The big question is why the heck with all the corporate sponsorship do they need a Kaua`i County Economic Development grant to do it?
Well you might ask Mr. Tourism, Economic Development Committee Chair Dickie Chang or his buddy Mr. Hotel Executive, Vice-Chair Jay Furfaro who ran the meeting in Chang’s absence... neither of whom were shy about taking the council’s time- and TV budget- to promote the event with a half hour infomercial at Wednesday’s meeting.
Before that they spent another good sized chunk of their televising budget, as they do every week, to give out "certificates"- all fully captioned- while patting themselves on the back for honoring this week’s recipients- four Small Business Administration prize winners.
Of course there’s always plenty of money to televise these little personal vote buying ventures but none to televise the current budget hearings,
The “winners” included the small business “journalist of the year”, the guy who does PR for the Chamber of Commerce, and the Woman Business Owner of the Year, a defense contractor intermediary, plus someone from the Kaua`i Economic Development Board for their apparently highly unsuccessful Economic Development Plan... all recipients of government largess to promote somebody’s business.
Back to Chang whose “Wala`au” TV program is sponsoring and directly financially benefiting from the marathon. Unbelievably enough, he not only hasn’t recused himself from discussion of the marathon as the law seems to require but actually he put this free “ad” for it on the agenda too.
With Chang “under the weather”, Furfaro and the rest of the councilmembers gushed over another the Chang-sponsored commercial, this one for the new taxpayer-sponsored tourism promotion web site put together by the local newspaper and linked through their web site.
To hear “The Garden Island (TGI)” newspaper Publisher Mark Lewis talk about his creation was to take off on a flight of fancy that the councilmembers were all too happy accommodate.
Lewis started out by claiming that TGI’s KauaiWorld site is the “most powerful web site on the island” at first claiming an absurd 97,000 individual hits a day, which later turned out to be the yearly figure- a paltry readership number that even this tiny little site approximates and exceeds with our daily e-mailing list.
Lewis- with Kaua`i Visitor Bureau chief Sue Kanoho, who cooked up this little boondoggle, at his side- then went on to tout the exposure the taxpayer-created and supported site will provide.
Apparently it’s not only going to be on the GI web site but at all 14 of owner “Lee Enterprises’” newspaper web sites. Quite a coup until you find out that the biggest market is in Tucson, Arizona and some of the other biggies are Bismarck, North Dakota, Butte, Montana and Sioux City, Iowa.
Still Lewis had the council seemingly awed by the wondrous site to behold and its nearly obsolete, cookie-cutter format and cluttered design... and it’s link from the paper’s “home page” with little box way down on the extreme right where it’s off the side of the screen for many browsers.
As anyone who has visited the paper’s web site knows it’s pretty pitiful to begin with. But as any regular reader can tell you there’s nothing much on the home page that isn’t available all over the web, which is why most people go straight to the local news page.
And guess what?- the subject site isn’t even linked to the “local news” or any of the content pages.
The site itself doesn’t really promote much of anything on Kaua`i except for 120 large businesses all the way from hotels to golf courses. Oh, shoved in the middle of a string of buttons for things like “hotels and lodging, vacation rentals, weddings, luaus, golf and dining” there is a link to something called “attractions” which lists a few beaches and such on a separate page.
There was no word from Lewis or Kanoho as to how these businesses are selected or whether there is a charge for posting them or even the customary “per click-through” charge for this taxpayer supported advertising. And the council didn’t even bother to ask.
And so how successful is the site? Lewis admitted- or actually he presented it like it was a lot- all of 2000 visitors have clicked it on so far.
All the specifics aside the propriety of a newspaper and government- especially in a discretionary monetary partnership- is ethically unconscionable. But not apparently at TGI where they do the bidding of the “old boys network” on a daily basis.
Well the councilmembers were extremely pleased with the whole thing and as usual patted themselves on the back for spending our money on it even though, as with all the other money they shove into off-island-based big businesses’ pockets through advertising, there’s absolutely no accountability and no valid mechanism to check if it’s working or, as we suspect, is just another rat hole of a boondoggle.
But we can be sure that at least one person is getting his – or our- money’s worth. Chang, who put these two promotional items on the agenda, has been rewarded with buttons of his own that link to his Wala`au Web site.
In a recently passed charter amendment anyone who has financial interest in any agenda item before the council is required to not just disclose that fact but now must actually recuse him or herself from discussing and voting on the matter.
The only question for Chang- who actually put the name of his TV program “Wala`au” on the ballot next to his name and then tried to claim that was his name because people yell out “Wala`au” when they see him- is whether he put these items on the agenda because he’s oblivious to the law or simply flouting it.
Has the master of personal promotion gone too far? Apparently not for Kaua`i where no one seems to care and no doubt will keep re-electing Chang and his fellow interest-conflicted, greedy little baby bovines until we, the milk-cows, come home.
Note- We apologize for the delay in presenting the final report in our “Unethical Culture” series on the Kaua`i Board of Ethics. If Time Warner cable’s ever gives us reliable internet service again- they’ve been out almost all day for the last two days- we’ll be able to finalize our research and links. We’ll try again next week- Ed.
But here on Kaua`i that doesn’t seem to stop the county council from extending the financial teat to every Tom, Dick and Harry Inc. coming in for suckle.
The developer and tourism industry crowd all seem to be adamant free marketeers and liaise-faire zealots until it comes time to line up for a government handout. Social safety net food programs for keiki, kupuna and cripples be damned- the adults at the C of C must be served- and served first.
Exhibit one- this past Wednesday’s council committee meetings.
The first recipient rat hole was the new “Kaua`i Marathon” coming up in September . Now no one is really complaining much about having a marathon on Kaua`i except those who will have to negotiate around the closed off Kalaheo and Lawa`i back roads that day or the residents- who were never asked- who apparently won’t even be able to leave their driveways.
The big question is why the heck with all the corporate sponsorship do they need a Kaua`i County Economic Development grant to do it?
Well you might ask Mr. Tourism, Economic Development Committee Chair Dickie Chang or his buddy Mr. Hotel Executive, Vice-Chair Jay Furfaro who ran the meeting in Chang’s absence... neither of whom were shy about taking the council’s time- and TV budget- to promote the event with a half hour infomercial at Wednesday’s meeting.
Before that they spent another good sized chunk of their televising budget, as they do every week, to give out "certificates"- all fully captioned- while patting themselves on the back for honoring this week’s recipients- four Small Business Administration prize winners.
Of course there’s always plenty of money to televise these little personal vote buying ventures but none to televise the current budget hearings,
The “winners” included the small business “journalist of the year”, the guy who does PR for the Chamber of Commerce, and the Woman Business Owner of the Year, a defense contractor intermediary, plus someone from the Kaua`i Economic Development Board for their apparently highly unsuccessful Economic Development Plan... all recipients of government largess to promote somebody’s business.
Back to Chang whose “Wala`au” TV program is sponsoring and directly financially benefiting from the marathon. Unbelievably enough, he not only hasn’t recused himself from discussion of the marathon as the law seems to require but actually he put this free “ad” for it on the agenda too.
With Chang “under the weather”, Furfaro and the rest of the councilmembers gushed over another the Chang-sponsored commercial, this one for the new taxpayer-sponsored tourism promotion web site put together by the local newspaper and linked through their web site.
To hear “The Garden Island (TGI)” newspaper Publisher Mark Lewis talk about his creation was to take off on a flight of fancy that the councilmembers were all too happy accommodate.
Lewis started out by claiming that TGI’s KauaiWorld site is the “most powerful web site on the island” at first claiming an absurd 97,000 individual hits a day, which later turned out to be the yearly figure- a paltry readership number that even this tiny little site approximates and exceeds with our daily e-mailing list.
Lewis- with Kaua`i Visitor Bureau chief Sue Kanoho, who cooked up this little boondoggle, at his side- then went on to tout the exposure the taxpayer-created and supported site will provide.
Apparently it’s not only going to be on the GI web site but at all 14 of owner “Lee Enterprises’” newspaper web sites. Quite a coup until you find out that the biggest market is in Tucson, Arizona and some of the other biggies are Bismarck, North Dakota, Butte, Montana and Sioux City, Iowa.
Still Lewis had the council seemingly awed by the wondrous site to behold and its nearly obsolete, cookie-cutter format and cluttered design... and it’s link from the paper’s “home page” with little box way down on the extreme right where it’s off the side of the screen for many browsers.
As anyone who has visited the paper’s web site knows it’s pretty pitiful to begin with. But as any regular reader can tell you there’s nothing much on the home page that isn’t available all over the web, which is why most people go straight to the local news page.
And guess what?- the subject site isn’t even linked to the “local news” or any of the content pages.
The site itself doesn’t really promote much of anything on Kaua`i except for 120 large businesses all the way from hotels to golf courses. Oh, shoved in the middle of a string of buttons for things like “hotels and lodging, vacation rentals, weddings, luaus, golf and dining” there is a link to something called “attractions” which lists a few beaches and such on a separate page.
There was no word from Lewis or Kanoho as to how these businesses are selected or whether there is a charge for posting them or even the customary “per click-through” charge for this taxpayer supported advertising. And the council didn’t even bother to ask.
And so how successful is the site? Lewis admitted- or actually he presented it like it was a lot- all of 2000 visitors have clicked it on so far.
All the specifics aside the propriety of a newspaper and government- especially in a discretionary monetary partnership- is ethically unconscionable. But not apparently at TGI where they do the bidding of the “old boys network” on a daily basis.
Well the councilmembers were extremely pleased with the whole thing and as usual patted themselves on the back for spending our money on it even though, as with all the other money they shove into off-island-based big businesses’ pockets through advertising, there’s absolutely no accountability and no valid mechanism to check if it’s working or, as we suspect, is just another rat hole of a boondoggle.
But we can be sure that at least one person is getting his – or our- money’s worth. Chang, who put these two promotional items on the agenda, has been rewarded with buttons of his own that link to his Wala`au Web site.
In a recently passed charter amendment anyone who has financial interest in any agenda item before the council is required to not just disclose that fact but now must actually recuse him or herself from discussing and voting on the matter.
The only question for Chang- who actually put the name of his TV program “Wala`au” on the ballot next to his name and then tried to claim that was his name because people yell out “Wala`au” when they see him- is whether he put these items on the agenda because he’s oblivious to the law or simply flouting it.
Has the master of personal promotion gone too far? Apparently not for Kaua`i where no one seems to care and no doubt will keep re-electing Chang and his fellow interest-conflicted, greedy little baby bovines until we, the milk-cows, come home.
Note- We apologize for the delay in presenting the final report in our “Unethical Culture” series on the Kaua`i Board of Ethics. If Time Warner cable’s ever gives us reliable internet service again- they’ve been out almost all day for the last two days- we’ll be able to finalize our research and links. We’ll try again next week- Ed.
Thursday, April 16, 2009
LET HIM LIE
LET HIM LIE: We’re had birthday fun at the doctors today so we’re presenting a spectacular open letter by researcher Hope Kallai of Moloa`a to Admiral Fargo, Superferry chief honcho.
Aloha e Admiral Fargo:
Being a second-generation, 30-year Navy man, it would probably be safe to assume you to be a man with a deep understanding of protocol and procedure and appreciation for honor and accountability.
I am aware that you have been CEO of the Hawai`i Superferry, Inc. (HSF) for only about a year and that as Commander In Chief of the U.S. Pacific Fleet from Oct 99 - May 2002, then as Commander of U.S. Pacific Command (PACOM) from May 2002-Feb 2005, you oversaw the preparation of many Federal Environmental Impact Statements for Hawai`i and the waters of the Pacific Ocean including:
Rim of the Pacific (RIMPAC) 2000 EA, May 2000
Mountaintop Surveillance Sensor Test Integration Center (MSSTIC) Facility Kauai, Hawaii EA, May 2000
North Pacific Targets Program EA, April 2001
2002 RIMPAC PEA
Theater High Altitude Area Defense (THAAD) Pacific Test Flights Environmental Assessment, December 2002
Development and Demonstration of the Long Range Air Launch Target System EA, October 2002
USWEX EA/OEA FONSI
USWEX EA/OEA Vol. 1
USWEX EA/OEA Vol. 2
Hickam Air Force Base C-17 Globemaster III Beddown EAt, September 2003
Ground-Based Midcourse Defense (GMD) Extended Test Range (ETR) EIS, July 2003
2004 Supplement to the RIMPAC 2002 PEA
Final Environmental Assessment: For Construction and Operation of a C-17 Short Austere Airfield (SAAF) Within the State of Hawaii, November 2004
Mobile Sensors EA, October 2004 Ballistic Missile Defense System Programmatic Draft EIS, September 2004 Mobile Launch Platform EA, June 2004
Final EIS Transformation of the 2nd Brigade, 25th Infantry Division (L) to a Stryker Brigade Combat Team in Hawaii, May 2004
Over a dozen federal EIS have been prepared by the Navy in Hawai`i since your retirement and since the initiation of the Superferry:
RIMPAC 2006 FONSI
2006 Supplement to the RIMPAC 2002 PEA
Flexible Target Family EA, December 2007
Permanent Stationing of the 2/25th Stryker Brigade Combat Team Draft EIS, June 2007
EA for MK-48 Mod 6 Torpedo Exercises in Hawaiian Waters, June 2007
Supplemental OEIS and EIS for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, April 2007
Composite Training Unit Exercises and Joint Task Force Training Exercises EA/OEA, February 2007
Ballistic Missile Defense System Programmatic Final EIS, February, 2007
Final Environmental Assessment: For Construction and Operation of a C-17 Short Austere Airfield (SAAF)
RIMPAC 08 Biological Opinion (NMFS)
Barking Sands Underwater Range Expansion (BSURE) Refurbishment Overseas EA, March 2008
It would seem you have great experience with EIS preparation. Perhaps you were not given a copy
of the last EIS performed by the State of Hawai`i for the last proposed ferry service, a fast PAX-only ferry servicing the southern shore of Oahu - the 1989 Oahu Intraisland Ferry System
available in the OEQC library
http://oeqc.doh.hawaii.gov/Shared%20Documents/EA_and_EIS_Online_Library/Oahu/ 1980s/1989-01-OA-FEIS-OAHU-INTERISLAND-FERRY-SYSTEM.pdf.
Potential ship strikes to wintering humpback whales and green sea turtles outside of the harbor areas were a prime concern even though there were only about 2,000 wintering humpback whales in Hawai`i at that time. Discussions were held with National Marine Fisheries Service about routes and timings and abut open ocean impacts, not just harbor impact. The State of Hawai`i , during Gov. Waihe`e's term, knew that any major Federal action triggers NEPA. As you are well aware, any dredging of ocean waters to deepen or widen the channel or turning basin or the constructing of a pier for the ferry vessel triggers permitting review of the U.S. Army Corps of Engineers, including NEPA, Rivers and Harbors Act and the Clean Water Act. The state knew that 20 years ago. Any federal study of harbor hydrology and bathymetry triggers the environmental review process. The EIS procedures were followed during Gov. Waihe`e's tenure and for this intraisland ferry proposal with minimal potential impacts.
The process of the Hawai`i Superferry has been severely flawed. With your expertise in overseeing EIS preparation, hopefully we can correct these procedures. The Superferry is not above the law; the Superferry must follow the same procedures that the Navy follows and the same procedures that previous ferry EIS followed 20 years ago.
As a submariner, you may be interested in the 1987 Final Impact Statement prepared by Atlantis Submarines for the Operation of Submersibles as a Public Attraction in the waters off Waikiki, Oahu , Hawai`i , now doing business as Atlantis Adventures (http://atlantisadventures.com/index.cfm). The tours would be at two dive sites in waters of -85' to -250' deep, 4,500 feet off Waikiki shore, between the Natatorium and Diamond Head.
This project included "habitat enhancement": sinking ships as artificial reefs for viewing because Atlantis thought the benthic environment somewhat boring.
Significant consideration was given to the exclusivity of the usage, impacts to cultural and recreational boating, surfing and fishing - with plans to cease tour operations during races. The area was a high vessel traffic area and the project was not projected to have significant impacts to whales because they usually do not frequent the project area, but impacts to humpback whales were considered. Recommendations were made to curb nighttime operations until after a trial period and to not do anything to "disturb the peace and safety of the whales." NOAA required a Section 7 consultation under the Endangered Species Act. The Atlantis operation was required to consider impacts to whales by both the submarine and escort boat operations. The EIS process did not prohibit Atlantis Adventures from operation.
Tim Dick, one of the co-founders of the HSF, said last week that the ship design was selected after consulting 20 year wave studies by UH School of Ocean Science .
From this, we developed a design specifically for Hawai'i including electric power plugs for refrigerator trucks, higher car decks to accommodate canoe racks for paddlers, comfortable leather sofas and coffee tables for families, and a design that would squeeze into Hawai'i 's dry docks. Many environmental "firsts" were designed into the ferry, including zero wastewater discharge, nontoxic bottom paint and next-generation ultra-clean and efficient diesel engines.
In November 2007, the School of Ocean and Earth Science and Technology, University of Hawai'i at Mānoa, using 25 years of buoy data, found the average annual significant wave height in Hawai`i to be 7 meters. The ship design Mr. Dick chose, the Alakai, is only certified to carry passengers in 6 meter seas. Perhaps with your expertise, HSF would have focused more on engineering and less on power plugs and paint. I understand that the paint job and branding is important, but community safety and the suitability of this ship design to the waters of Hawai`i are more important than paint.
Millions was spent on embedded technology but the Alakai has no life boats or marine evacuation systems. How can we, as a community, be asked to bring our kūpuna in wheelchairs on a ship with no way for them to exit in an emergency? Life jackets are just not sufficient to survive in our ocean conditions during emergency situations. Safety concerns, as you well know, would have been addressed during a proper EIS process. Maybe this community would rather have an evacuation slide rather than a ship than can carry 50 ton vehicles.
The Alakai that cannot have a scuppers because of the vehicle loading. With such a large exposed vehicle deck, given the intensity of Hawai`i precipitation events and waves breaking over the bow, how can the bilge design only accommodate 500 liters? These questions would have been addressed during a proper EIS process.
The Atlantis EIS included consideration of weather conditions and wave - knew they would not be able run when "Waves or sea swells which make the transfer of passengers from the barge to the vessel hazardous." HSF operational plans only considered downtime for annual maintenance. There was no consideration of downtime for ocean and weather conditions, with significant financial impacts. As an experienced mariner, please adjust operational ability to weather conditions in financial projections.
Before your tenure with the Superferry, decisions were made which have cost the state greatly. The State of Hawai`i spent $40 Million on barges to be built exclusively for Hawai`i Superferry vessels and caused them to be built in China , sending concrete and steel jobs overseas, in an economic time when our residents could certainly have used the jobs. This is a serious Jones Act violation - in the state with the second highest union membership in the US ! How many jobs did this decision cost our local construction and union workers? Again, a proper EIS could have avoided this.
Now, since HSF has installed stern-quarter mounted, folding ramps, the loading barges will not be necessary. Due to the artificial time restraints imposed by HSF, the decisions the state made have severely under-estimated the waves and surges of the harbors. The Manaiakalani loading barge in Kahului Harbor is only certified for a 1.43 meter (17 inch) wave! Average wave heights are 3-8 feet in Kahului. This error has cost over $5 million in continuing repair costs. If proper EIS procedure had been followed, this problem would have been avoided and saved almost $50 million. Hopefully with your expertise, these mistakes will not be made again. Please notify the people of Hawai`i about your company's plans for using the Huaka`i and re-fitting the Alakai with stern mount ramps. Please notify the HAR/DOT that dredging the harbor at Kahului to accommodate the setting of the mooring of the loading barge Manaiakalani will not be necessary.
Many times it has been mistakenly repeated that no other ship has had to comply with or perform an EIS. As you can see, many EIS have been compiled by the military and by private enterprises, including ferries. The previous ferry design was selected through the state bidding process. The sooner these studies are honored, the more expeditious the current process will be. In 2006, the U.S. Coast Guard prepared a Draft Environmental Assessment for Patrol Boat Support Facilities
USCG Station Maui to add a new boat to their fleet (which required dredging of 140 cubic yards of ocean floor). Because the high-speed ferry is a new mode of interisland transport, the EIS procedure, the ESA, NEPA and HEPA must be honored to the full intent and spirit of the law, as you well know and have spent so much of your career supporting. Mahalo for your expertise in fixing this flawed EIS process and honoring and learning from the EIS of the past and near present and holding the HSF accountable to the same standards as the Navy, the Coast Guard and private enterprise. I apologize for having to appeal to you in such a public forum, but since the Alakai has left the state and the HSF website was reduced to ticket refund status, there's no other contact listed. Thank you sincerely for addressing my concerns quickly and taking command of the EIS process.
Hope Kallai
Aloha e Admiral Fargo:
Being a second-generation, 30-year Navy man, it would probably be safe to assume you to be a man with a deep understanding of protocol and procedure and appreciation for honor and accountability.
I am aware that you have been CEO of the Hawai`i Superferry, Inc. (HSF) for only about a year and that as Commander In Chief of the U.S. Pacific Fleet from Oct 99 - May 2002, then as Commander of U.S. Pacific Command (PACOM) from May 2002-Feb 2005, you oversaw the preparation of many Federal Environmental Impact Statements for Hawai`i and the waters of the Pacific Ocean including:
Rim of the Pacific (RIMPAC) 2000 EA, May 2000
Mountaintop Surveillance Sensor Test Integration Center (MSSTIC) Facility Kauai, Hawaii EA, May 2000
North Pacific Targets Program EA, April 2001
2002 RIMPAC PEA
Theater High Altitude Area Defense (THAAD) Pacific Test Flights Environmental Assessment, December 2002
Development and Demonstration of the Long Range Air Launch Target System EA, October 2002
USWEX EA/OEA FONSI
USWEX EA/OEA Vol. 1
USWEX EA/OEA Vol. 2
Hickam Air Force Base C-17 Globemaster III Beddown EAt, September 2003
Ground-Based Midcourse Defense (GMD) Extended Test Range (ETR) EIS, July 2003
2004 Supplement to the RIMPAC 2002 PEA
Final Environmental Assessment: For Construction and Operation of a C-17 Short Austere Airfield (SAAF) Within the State of Hawaii, November 2004
Mobile Sensors EA, October 2004 Ballistic Missile Defense System Programmatic Draft EIS, September 2004 Mobile Launch Platform EA, June 2004
Final EIS Transformation of the 2nd Brigade, 25th Infantry Division (L) to a Stryker Brigade Combat Team in Hawaii, May 2004
Over a dozen federal EIS have been prepared by the Navy in Hawai`i since your retirement and since the initiation of the Superferry:
RIMPAC 2006 FONSI
2006 Supplement to the RIMPAC 2002 PEA
Flexible Target Family EA, December 2007
Permanent Stationing of the 2/25th Stryker Brigade Combat Team Draft EIS, June 2007
EA for MK-48 Mod 6 Torpedo Exercises in Hawaiian Waters, June 2007
Supplemental OEIS and EIS for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, April 2007
Composite Training Unit Exercises and Joint Task Force Training Exercises EA/OEA, February 2007
Ballistic Missile Defense System Programmatic Final EIS, February, 2007
Final Environmental Assessment: For Construction and Operation of a C-17 Short Austere Airfield (SAAF)
RIMPAC 08 Biological Opinion (NMFS)
Barking Sands Underwater Range Expansion (BSURE) Refurbishment Overseas EA, March 2008
It would seem you have great experience with EIS preparation. Perhaps you were not given a copy
of the last EIS performed by the State of Hawai`i for the last proposed ferry service, a fast PAX-only ferry servicing the southern shore of Oahu - the 1989 Oahu Intraisland Ferry System
available in the OEQC library
http://oeqc.doh.hawaii.gov/Shared%20Documents/EA_and_EIS_Online_Library/Oahu/ 1980s/1989-01-OA-FEIS-OAHU-INTERISLAND-FERRY-SYSTEM.pdf.
Potential ship strikes to wintering humpback whales and green sea turtles outside of the harbor areas were a prime concern even though there were only about 2,000 wintering humpback whales in Hawai`i at that time. Discussions were held with National Marine Fisheries Service about routes and timings and abut open ocean impacts, not just harbor impact. The State of Hawai`i , during Gov. Waihe`e's term, knew that any major Federal action triggers NEPA. As you are well aware, any dredging of ocean waters to deepen or widen the channel or turning basin or the constructing of a pier for the ferry vessel triggers permitting review of the U.S. Army Corps of Engineers, including NEPA, Rivers and Harbors Act and the Clean Water Act. The state knew that 20 years ago. Any federal study of harbor hydrology and bathymetry triggers the environmental review process. The EIS procedures were followed during Gov. Waihe`e's tenure and for this intraisland ferry proposal with minimal potential impacts.
The process of the Hawai`i Superferry has been severely flawed. With your expertise in overseeing EIS preparation, hopefully we can correct these procedures. The Superferry is not above the law; the Superferry must follow the same procedures that the Navy follows and the same procedures that previous ferry EIS followed 20 years ago.
As a submariner, you may be interested in the 1987 Final Impact Statement prepared by Atlantis Submarines for the Operation of Submersibles as a Public Attraction in the waters off Waikiki, Oahu , Hawai`i , now doing business as Atlantis Adventures (http://atlantisadventures.com/index.cfm). The tours would be at two dive sites in waters of -85' to -250' deep, 4,500 feet off Waikiki shore, between the Natatorium and Diamond Head.
This project included "habitat enhancement": sinking ships as artificial reefs for viewing because Atlantis thought the benthic environment somewhat boring.
Significant consideration was given to the exclusivity of the usage, impacts to cultural and recreational boating, surfing and fishing - with plans to cease tour operations during races. The area was a high vessel traffic area and the project was not projected to have significant impacts to whales because they usually do not frequent the project area, but impacts to humpback whales were considered. Recommendations were made to curb nighttime operations until after a trial period and to not do anything to "disturb the peace and safety of the whales." NOAA required a Section 7 consultation under the Endangered Species Act. The Atlantis operation was required to consider impacts to whales by both the submarine and escort boat operations. The EIS process did not prohibit Atlantis Adventures from operation.
Tim Dick, one of the co-founders of the HSF, said last week that the ship design was selected after consulting 20 year wave studies by UH School of Ocean Science .
From this, we developed a design specifically for Hawai'i including electric power plugs for refrigerator trucks, higher car decks to accommodate canoe racks for paddlers, comfortable leather sofas and coffee tables for families, and a design that would squeeze into Hawai'i 's dry docks. Many environmental "firsts" were designed into the ferry, including zero wastewater discharge, nontoxic bottom paint and next-generation ultra-clean and efficient diesel engines.
In November 2007, the School of Ocean and Earth Science and Technology, University of Hawai'i at Mānoa, using 25 years of buoy data, found the average annual significant wave height in Hawai`i to be 7 meters. The ship design Mr. Dick chose, the Alakai, is only certified to carry passengers in 6 meter seas. Perhaps with your expertise, HSF would have focused more on engineering and less on power plugs and paint. I understand that the paint job and branding is important, but community safety and the suitability of this ship design to the waters of Hawai`i are more important than paint.
Millions was spent on embedded technology but the Alakai has no life boats or marine evacuation systems. How can we, as a community, be asked to bring our kūpuna in wheelchairs on a ship with no way for them to exit in an emergency? Life jackets are just not sufficient to survive in our ocean conditions during emergency situations. Safety concerns, as you well know, would have been addressed during a proper EIS process. Maybe this community would rather have an evacuation slide rather than a ship than can carry 50 ton vehicles.
The Alakai that cannot have a scuppers because of the vehicle loading. With such a large exposed vehicle deck, given the intensity of Hawai`i precipitation events and waves breaking over the bow, how can the bilge design only accommodate 500 liters? These questions would have been addressed during a proper EIS process.
The Atlantis EIS included consideration of weather conditions and wave - knew they would not be able run when "Waves or sea swells which make the transfer of passengers from the barge to the vessel hazardous." HSF operational plans only considered downtime for annual maintenance. There was no consideration of downtime for ocean and weather conditions, with significant financial impacts. As an experienced mariner, please adjust operational ability to weather conditions in financial projections.
Before your tenure with the Superferry, decisions were made which have cost the state greatly. The State of Hawai`i spent $40 Million on barges to be built exclusively for Hawai`i Superferry vessels and caused them to be built in China , sending concrete and steel jobs overseas, in an economic time when our residents could certainly have used the jobs. This is a serious Jones Act violation - in the state with the second highest union membership in the US ! How many jobs did this decision cost our local construction and union workers? Again, a proper EIS could have avoided this.
Now, since HSF has installed stern-quarter mounted, folding ramps, the loading barges will not be necessary. Due to the artificial time restraints imposed by HSF, the decisions the state made have severely under-estimated the waves and surges of the harbors. The Manaiakalani loading barge in Kahului Harbor is only certified for a 1.43 meter (17 inch) wave! Average wave heights are 3-8 feet in Kahului. This error has cost over $5 million in continuing repair costs. If proper EIS procedure had been followed, this problem would have been avoided and saved almost $50 million. Hopefully with your expertise, these mistakes will not be made again. Please notify the people of Hawai`i about your company's plans for using the Huaka`i and re-fitting the Alakai with stern mount ramps. Please notify the HAR/DOT that dredging the harbor at Kahului to accommodate the setting of the mooring of the loading barge Manaiakalani will not be necessary.
Many times it has been mistakenly repeated that no other ship has had to comply with or perform an EIS. As you can see, many EIS have been compiled by the military and by private enterprises, including ferries. The previous ferry design was selected through the state bidding process. The sooner these studies are honored, the more expeditious the current process will be. In 2006, the U.S. Coast Guard prepared a Draft Environmental Assessment for Patrol Boat Support Facilities
USCG Station Maui to add a new boat to their fleet (which required dredging of 140 cubic yards of ocean floor). Because the high-speed ferry is a new mode of interisland transport, the EIS procedure, the ESA, NEPA and HEPA must be honored to the full intent and spirit of the law, as you well know and have spent so much of your career supporting. Mahalo for your expertise in fixing this flawed EIS process and honoring and learning from the EIS of the past and near present and holding the HSF accountable to the same standards as the Navy, the Coast Guard and private enterprise. I apologize for having to appeal to you in such a public forum, but since the Alakai has left the state and the HSF website was reduced to ticket refund status, there's no other contact listed. Thank you sincerely for addressing my concerns quickly and taking command of the EIS process.
Hope Kallai
Wednesday, April 15, 2009
THE BITE
THE BITE: We’ll leave the unethical culture on Kaua`i on the back burner today as we take tongue to glue and mail off our fare share to sustain the U.S. bombing of brown people across the world until they hate us so much they’re willing to blow themselves up in our midst.
But demilitarization isn’t what’s on the minds of the handful ditto-heads and mindless, sociopathic, so-called “tea party” participants.
There was this fat Rush clone on CNN this morning who was bedecked with an “Obama is a fascist” poster with a photo-shopped Obama-as-Hitler mock-up and when the reporter asked three of four times “why is Obama a fascist” the guy kept screaming “because he’s a fascist”.
And he was the most articulate of the crowd.
What she should have asked was “how did you get here today?. Was it in a car subsidized by taxes or on the road taxes paid for. Perhaps you flew in to a tax-supported airport?”
He sure was standing on a taxpayer built sidewalk and the police presence that surrounded and protected them was paid for by... well, you get the point.
Funny you never hear that type complain about the tax money thrown down the rat hole of “defense”- a fancy ironically-opposite euphemism meaning violent imperialism.
Nope they complain about “welfare queens” and the waste of money on social programs and the safety net they are presumably one or two pay checks away from.
But at least most of these creeps are, if too dumb to live, consistently wrong about everything. What really bothers us when we hear normally rational people demand lower taxes saying “I’m a fiscal conservative and a social liberal”.
Oh, you mean you’re a thief. You want everything the government provides but don’t want to pay for it.
Actually through a strictly progressive taxation scheme the 90% of the people who have 10% of the money could go tax free if we properly taxed the 10% who have 90% of it.
But these folks aren’t talking progressive taxation. As a matter of fact they apparently have a stake in making the rich richer thinking in their own demented way that they will become one of the rich despite the telling sign of the intellectual bankruptcy of their world view.
But why single them out? Today’s news portends that the folks at the legislature aren’t exactly Einsteins or brave enough to progressively raise taxes more than a smidgeon and are apparently rather intent on passing tax increases that hurt the poor the most with increased taxes on goods like tobacco, alcohol and fireworks along with a proposed sales tax for the counties and even a raise in the state excise tax.
All this got us thinking about what exactly happened to the progressive taxation scheme and the social “safety net” the government provided with the taxes it collected until about 30 years ago.
It all started with the “privatization” of government services and the reign of the real fascists, by definition, under Ronald Regan, when the state and corporate worlds began to merge as never before.
Instead of spending money directly serving those who were in need they began to set up private corporations, many of them non profit, to take on these services- and they fully funded them.
The premise was that no one was giving the government money voluntarily so let’s leverage the money by giving it to an organization that can also fund-raise and thereby get more bang for the buck.
But what actually happened- something many of us foresaw at the time- was that that government funding was the first thing to be cut whenever the war machine and the service of corporate agendas demanded more and more and more.
In addition every time there was one of these “financial crises” the first place the corporate sycophants in office looked to for a cut was those now private non-profits who were by then taking on the lions share of social safety net programs.
After all- they could always raise more private funds.
Meanwhile the real wages of the working class were slashed to the point where, while one person working one job used to be enough to support a family, now two people working two jobs doesn’t cut it.
All the while, due to increased production with no recompense for the workers who produced the wealth, that 90%-10% ratio we mentioned above was pushed to more like a 95%-5%. Workers were seen by that 5%, not as essential to their business and the fiscal health of the economic system but as an expendable burden on their quest to move the ratio to 99%-1%
If we shirk off the chains of the fascist corporatization of government and cap the financial bottomless pit of an insatiable saber-rattling, war machine we’d have plenty left to provide living wages and even provide health care for all without paying another nickel in taxes.
And if we collected taxes only from those with the ability to pay we’d get that “free lunch” the “fiscal conservative yet social liberal” wants so badly.
Put that tea in your pipe and smoke it.
But demilitarization isn’t what’s on the minds of the handful ditto-heads and mindless, sociopathic, so-called “tea party” participants.
There was this fat Rush clone on CNN this morning who was bedecked with an “Obama is a fascist” poster with a photo-shopped Obama-as-Hitler mock-up and when the reporter asked three of four times “why is Obama a fascist” the guy kept screaming “because he’s a fascist”.
And he was the most articulate of the crowd.
What she should have asked was “how did you get here today?. Was it in a car subsidized by taxes or on the road taxes paid for. Perhaps you flew in to a tax-supported airport?”
He sure was standing on a taxpayer built sidewalk and the police presence that surrounded and protected them was paid for by... well, you get the point.
Funny you never hear that type complain about the tax money thrown down the rat hole of “defense”- a fancy ironically-opposite euphemism meaning violent imperialism.
Nope they complain about “welfare queens” and the waste of money on social programs and the safety net they are presumably one or two pay checks away from.
But at least most of these creeps are, if too dumb to live, consistently wrong about everything. What really bothers us when we hear normally rational people demand lower taxes saying “I’m a fiscal conservative and a social liberal”.
Oh, you mean you’re a thief. You want everything the government provides but don’t want to pay for it.
Actually through a strictly progressive taxation scheme the 90% of the people who have 10% of the money could go tax free if we properly taxed the 10% who have 90% of it.
But these folks aren’t talking progressive taxation. As a matter of fact they apparently have a stake in making the rich richer thinking in their own demented way that they will become one of the rich despite the telling sign of the intellectual bankruptcy of their world view.
But why single them out? Today’s news portends that the folks at the legislature aren’t exactly Einsteins or brave enough to progressively raise taxes more than a smidgeon and are apparently rather intent on passing tax increases that hurt the poor the most with increased taxes on goods like tobacco, alcohol and fireworks along with a proposed sales tax for the counties and even a raise in the state excise tax.
All this got us thinking about what exactly happened to the progressive taxation scheme and the social “safety net” the government provided with the taxes it collected until about 30 years ago.
It all started with the “privatization” of government services and the reign of the real fascists, by definition, under Ronald Regan, when the state and corporate worlds began to merge as never before.
Instead of spending money directly serving those who were in need they began to set up private corporations, many of them non profit, to take on these services- and they fully funded them.
The premise was that no one was giving the government money voluntarily so let’s leverage the money by giving it to an organization that can also fund-raise and thereby get more bang for the buck.
But what actually happened- something many of us foresaw at the time- was that that government funding was the first thing to be cut whenever the war machine and the service of corporate agendas demanded more and more and more.
In addition every time there was one of these “financial crises” the first place the corporate sycophants in office looked to for a cut was those now private non-profits who were by then taking on the lions share of social safety net programs.
After all- they could always raise more private funds.
Meanwhile the real wages of the working class were slashed to the point where, while one person working one job used to be enough to support a family, now two people working two jobs doesn’t cut it.
All the while, due to increased production with no recompense for the workers who produced the wealth, that 90%-10% ratio we mentioned above was pushed to more like a 95%-5%. Workers were seen by that 5%, not as essential to their business and the fiscal health of the economic system but as an expendable burden on their quest to move the ratio to 99%-1%
If we shirk off the chains of the fascist corporatization of government and cap the financial bottomless pit of an insatiable saber-rattling, war machine we’d have plenty left to provide living wages and even provide health care for all without paying another nickel in taxes.
And if we collected taxes only from those with the ability to pay we’d get that “free lunch” the “fiscal conservative yet social liberal” wants so badly.
Put that tea in your pipe and smoke it.
Tuesday, April 14, 2009
(PNN) Unethical culture- Government service with a personal “touch”- Part 2
The following is the second in a three-part series of articles regarding reported apparent violations of the Kaua`i County Charter by the Kaua`i County Board of Ethics. Much of the report is based on BOE related documents PNN has recently obtained.
(PNN) Unethical culture- Government service with a personal “touch”
Part Two - The Long and Winding Road to Inertia.
Section XX (20) of the Kaua`i County Charter is called the “Code of Ethics” and is the main document that guides ethical conduct of government employees and officials in the county.
The county also has a law called the “Code of Ethics” contained in Chapter 3 Article 1 of the Kaua`i County Code.(KCC).
The Board of Ethics (BOE)- created by the charter- also has “administrative rules”, also known as “ad rules” that detail administrate procedures for the board.
A “charter” is a document that is like a constitution, usually for local or municipal governments. The county and the various states have constitutions. Locales have charters and they serve the same purpose- to give, in broad terms, guidelines for creating ordinances or laws that implement the charter.
Laws must be in compliance and conform with charters, not the other way around. If a conflict exists, the charter “trumps” the law.
Similarly, ad rules- a creation of the state through Chapter 91 of Hawai`i Revised Statutes- must conform to both the code and the charter.
But the Kauai` Board of Ethics (BOE) ad rules, as they stand right now, give the BOE the right to seemingly select either the charter or the code using the term “or” rather than “and” when addressing the issue.
And the BOE hasn’t been shy about conveniently selecting one or the other over the years in applying “situational ethics” to cases presented to them by the public and the various and sundry county employees and/or officials.
An examination of 106 cases the board has dealt with dating back to August of 1976 shows that some decisions are based on the charter, some on the code and some on both.
The problem is that while the code deals only with a flesh-out of direct conflicts there is nothing pertinent to conflicts of interest in the charter about “direct” conflicts except for disclosures and there is noting at all in KCC Chapter 3 Article 1 regarding the prohibitions in Section 20.02(D) of the Charter telling “employees or officers” they may not “appear on behalf of private interests” before other county entities
The code deals with things like gifts, confidential information, fair treatment, contracts, requirements of disclosure, restrictions on post employment and, most importantly for our purposes, conflicts of interest in Section 3-1.7.
The Conceits of Interest section says
“(a) “No employee shall take any official action directly effecting:
(1) A business or other undertaking in which he has a substantial financial interest or
(2) A private undertaking in which he is engaged as a legal counsel, advisor, consultant, representative or other agency capacity.”
The only exceptions are for a department head who is “unable to disqualify himself” or “a member of a board, commission or committee whose participation is necessary in order to constitute a quorum”.
It then goes on to prohibit all kind of “direct” conflicts, where an “employee or councilman” would be exercising direct discretionary consideration of a request in which he has an interest. But is entirely silent when it comes to the prohibition in the charter’s article 20.02(D) prohibitions
The charter does have a section 20.04 that deal with “Disclosures” that says
“Any member of the council or any board or commission who knows he has a direct personal financial interest in any proposal pending before the body of which he is a
member shall disclose such interest to such body”
It goes on to discuss recusal in the matter but only as pertains to disclosure of “direct” conflicts and in no way negates the other parts of Section 20.
Other than that the discussion of direct vs. indirect and potential vs. real conflicts is fully a construction of the code, not the charter.
But just because “direct” conflicts are banned in the code doesn’t make them the exclusive kind of conflict that is forbidden, as the charter states.
Also “significant” referring to an amount, doesn’t appear in charter section 20 and is also a construction of the code.
The combination of the code’s lack of any reference to 20.02(D), the ad rules mention of adhering to the “charter OR code” and the code’s detail of only “direct” and “significant” amounts in considering conflicts, all make for an easy way for the BOE to ignore the provisions of the charter..
And they haven’t been shy, especially lately, about exercising this questionable discretion.
That penchant, as far as we can glean from reading the minutes of the board’s meetings along with looking at the recent decisions, is most likely supported by whatever is contained in the secret county attorney’s opinion that the board refuses to release, as we described yesterday.
It apparently looks at the code in isolation from the charter and says that if it doesn’t violate the code it is not a violation of the “Code of Ethics”. It seemingly directs the BOE to consider only the conflicts that are listed in the code which has limited conflicts to “direct” and “significant” types, where the charter does not contain this language at all.
That has led to the leap in logic which says that if it is not prohibited in the code, it is not prohibited at all, no matter what the charter says.
In a logical solecism, this would be like saying in the broad class of “animals” there exists “pigs” and then to conclude if an animal is not a pig, it is not an animal.
Two cases over the past year or so have highlighted this penchant for ignoring the charter in order to clear those who have apparently violated Section 20.02(D) of the charter.
The first came to the BOE strangely enough via a memo, dated Dec. 5, 2007 to Office of Boards and Commissions Administrator John Isobe from the Chair of the BOE,. Leila Fuller, in a “Request for an Advisory Opinion Regarding Potential Conflict Situations”
She asks “whether a member of a county board or commission may represent his/her employer or company before a County department and/or commissions?”
Then she goes into some “background” regarding the appointment of former planning Director Dee Crowell who now sits on the Board of Water Supply while working as “Vice President of Land Development for The Resort Group”.
“As part of his work Mr. Crowell may be required to personally meet with departmental staff regarding zoning and other permitting issues... as well as represent his company before the Planning Commission and or County Council. In either case is Mr. Crowell precluded from meeting with administrative department staff and/or appearing before the Planning Commission/County Council on behalf of his employer? (emphasis added) wrote Fuller, not Crowell himself.
But even more ominous than Fuller’s seemingly advocating for an individual who may be in conflict with the ethics laws of the county is her last sentence.
“(The opinion requested) will also provide guidance in determining whether future appointees with similar situations are relatively clear from potential conflicts”, Fuller concludes implying what side she will come down on when the matter comes before the board.
In a contested BOE hearing that made headline a few years back, Police Commission chair Michael Ching was accused of essentially being an advocate for eventual police chief, KC Lum, because he had favored Lum during the commission’s selection process.
How Fuller’s advocating for Crowell for a “special privilege” – not just during deliberations but before they even began- is not a similar circumstance is not apparent.
The Crowell decision was delivered to Isobe in a letter darted December 31, 2007 signed by Fuller, Vice Chair Mark Hubbard and Secretary Judy Lenthall. It said”
“The Board of Ethics finds that the County Charter and County Regulations regarding ethics do no preclude Mr. Crowell from acting in a reprehensive capacity before other County agencies and departments besides the Board of Water and the Water Department so long as he complies with Sect 3-1.7 (Conflicts of Interest) of the County Regulations.”.
But strangely enough there is no mention of any BOE meeting where they would have made this determination in any record of the BOE other than the letter. As a matter of fact, it is not even listed among the 106 cases where advisory opinions were either sought or rendered.
The next case was the one we discussed briefly in part 1 of this report regarding Attorney Jonathan Chun.
This time it was Chun himself soliciting an advisory opinion. In a letter dated January 30, 2008 Chun writes saying he is “serving as chair of the Kauai County Charter Commission” and cites charter section 20.02(D).
He also notes that “(a)s a private attorney I have appeared before the County Planning Commission and the County Liquor Commission. Since my appointment to the charter Commission I have appeared before the County Planning Commission and the County Council”
Chun then attempts a lawyerly ploy to direct the BOE to what he sees as a redeeming technicality.
He points to KCC “Section 3-1.7(e) which states that no “employee shall assist any person or business or act in a representative capacity before a County agency for a contingent compensation in any transaction involving the county’ (emphasis his)”.
He later says “(m)y work before any county agency is done on a hourly basis and not on a contingent fee”.
This almost laughable equivocation of the word contingent- even going to the length of using the term “contingent fee” rather than the usual “contingency fee”- ignores the fact that the word is used in the code to denote a fee that is contingent on performing the actions before the agency, board or commission and not about how the representative’s payment is structured.
But then he goes on to his main point that the KCC’s Section 3.17 only forbids representation “if he has official authority over that county agency” leaving out the previously cited the prohibition in 20.02(D).
The decision? The list of advisory opinions says:
“Relative to information in the Code of Ethics and Charter, Board finds that appointee may continue to appear as a private attorney before other County agencies on behalf of his clients. Dissenting opinion noting abstention based on taking 20.02(D) at face value or with a broad interpretation.”
That dissenting abstention was reportedly from Secretary Lenthall. In a letter describing her apprehension she foreshadows, for the first time in writing, the contentions she, Fuller and Hubbard would later expound upon- that 20.02(D) read strictly would prohibit her from things like applying for a camping permit or testifying as a private individual before a the council or planning commission on a law that would affect her business.
But she also asks “(a)m I required to forgo my responsibilities to the Food Bank (a private non profit corporation) because I serve on the Board of Ethics?”
20.02(D) apparently provides that answer-she must resign from one or the other..
The current ad rules that call for selectively applying either the code of the charter is up for review by the BOE. The new proposed rules are wide ranging and seemingly give the board even more discretionary powers regarding processing of complaints, allowing them to reject cases out of hand, decide them without even having a hearing, and includes a clause to let them not allow any testimony from the complainant.
And although HRS Chapter 91 on ad rules compels a lengthy process with public hearings for changing even a comma, the BOE is talking about just changing the rules willy-nilly because they aren’t “significant changes”.
One of the proposed new rules is to change the “or” to an “and” in the definition of the “Code of Ethics” so it’s not the charter “or” the county code but both taken together on which they base their decisions.
The precedent was set with the Chun case. But how would the board justify their decision?
Look to this space for part three- Deep Thoughts- a “Handy” Diversion.
(PNN) Unethical culture- Government service with a personal “touch”
Part Two - The Long and Winding Road to Inertia.
Section XX (20) of the Kaua`i County Charter is called the “Code of Ethics” and is the main document that guides ethical conduct of government employees and officials in the county.
The county also has a law called the “Code of Ethics” contained in Chapter 3 Article 1 of the Kaua`i County Code.(KCC).
The Board of Ethics (BOE)- created by the charter- also has “administrative rules”, also known as “ad rules” that detail administrate procedures for the board.
A “charter” is a document that is like a constitution, usually for local or municipal governments. The county and the various states have constitutions. Locales have charters and they serve the same purpose- to give, in broad terms, guidelines for creating ordinances or laws that implement the charter.
Laws must be in compliance and conform with charters, not the other way around. If a conflict exists, the charter “trumps” the law.
Similarly, ad rules- a creation of the state through Chapter 91 of Hawai`i Revised Statutes- must conform to both the code and the charter.
But the Kauai` Board of Ethics (BOE) ad rules, as they stand right now, give the BOE the right to seemingly select either the charter or the code using the term “or” rather than “and” when addressing the issue.
And the BOE hasn’t been shy about conveniently selecting one or the other over the years in applying “situational ethics” to cases presented to them by the public and the various and sundry county employees and/or officials.
An examination of 106 cases the board has dealt with dating back to August of 1976 shows that some decisions are based on the charter, some on the code and some on both.
The problem is that while the code deals only with a flesh-out of direct conflicts there is nothing pertinent to conflicts of interest in the charter about “direct” conflicts except for disclosures and there is noting at all in KCC Chapter 3 Article 1 regarding the prohibitions in Section 20.02(D) of the Charter telling “employees or officers” they may not “appear on behalf of private interests” before other county entities
The code deals with things like gifts, confidential information, fair treatment, contracts, requirements of disclosure, restrictions on post employment and, most importantly for our purposes, conflicts of interest in Section 3-1.7.
The Conceits of Interest section says
“(a) “No employee shall take any official action directly effecting:
(1) A business or other undertaking in which he has a substantial financial interest or
(2) A private undertaking in which he is engaged as a legal counsel, advisor, consultant, representative or other agency capacity.”
The only exceptions are for a department head who is “unable to disqualify himself” or “a member of a board, commission or committee whose participation is necessary in order to constitute a quorum”.
It then goes on to prohibit all kind of “direct” conflicts, where an “employee or councilman” would be exercising direct discretionary consideration of a request in which he has an interest. But is entirely silent when it comes to the prohibition in the charter’s article 20.02(D) prohibitions
The charter does have a section 20.04 that deal with “Disclosures” that says
“Any member of the council or any board or commission who knows he has a direct personal financial interest in any proposal pending before the body of which he is a
member shall disclose such interest to such body”
It goes on to discuss recusal in the matter but only as pertains to disclosure of “direct” conflicts and in no way negates the other parts of Section 20.
Other than that the discussion of direct vs. indirect and potential vs. real conflicts is fully a construction of the code, not the charter.
But just because “direct” conflicts are banned in the code doesn’t make them the exclusive kind of conflict that is forbidden, as the charter states.
Also “significant” referring to an amount, doesn’t appear in charter section 20 and is also a construction of the code.
The combination of the code’s lack of any reference to 20.02(D), the ad rules mention of adhering to the “charter OR code” and the code’s detail of only “direct” and “significant” amounts in considering conflicts, all make for an easy way for the BOE to ignore the provisions of the charter..
And they haven’t been shy, especially lately, about exercising this questionable discretion.
That penchant, as far as we can glean from reading the minutes of the board’s meetings along with looking at the recent decisions, is most likely supported by whatever is contained in the secret county attorney’s opinion that the board refuses to release, as we described yesterday.
It apparently looks at the code in isolation from the charter and says that if it doesn’t violate the code it is not a violation of the “Code of Ethics”. It seemingly directs the BOE to consider only the conflicts that are listed in the code which has limited conflicts to “direct” and “significant” types, where the charter does not contain this language at all.
That has led to the leap in logic which says that if it is not prohibited in the code, it is not prohibited at all, no matter what the charter says.
In a logical solecism, this would be like saying in the broad class of “animals” there exists “pigs” and then to conclude if an animal is not a pig, it is not an animal.
Two cases over the past year or so have highlighted this penchant for ignoring the charter in order to clear those who have apparently violated Section 20.02(D) of the charter.
The first came to the BOE strangely enough via a memo, dated Dec. 5, 2007 to Office of Boards and Commissions Administrator John Isobe from the Chair of the BOE,. Leila Fuller, in a “Request for an Advisory Opinion Regarding Potential Conflict Situations”
She asks “whether a member of a county board or commission may represent his/her employer or company before a County department and/or commissions?”
Then she goes into some “background” regarding the appointment of former planning Director Dee Crowell who now sits on the Board of Water Supply while working as “Vice President of Land Development for The Resort Group”.
“As part of his work Mr. Crowell may be required to personally meet with departmental staff regarding zoning and other permitting issues... as well as represent his company before the Planning Commission and or County Council. In either case is Mr. Crowell precluded from meeting with administrative department staff and/or appearing before the Planning Commission/County Council on behalf of his employer? (emphasis added) wrote Fuller, not Crowell himself.
But even more ominous than Fuller’s seemingly advocating for an individual who may be in conflict with the ethics laws of the county is her last sentence.
“(The opinion requested) will also provide guidance in determining whether future appointees with similar situations are relatively clear from potential conflicts”, Fuller concludes implying what side she will come down on when the matter comes before the board.
In a contested BOE hearing that made headline a few years back, Police Commission chair Michael Ching was accused of essentially being an advocate for eventual police chief, KC Lum, because he had favored Lum during the commission’s selection process.
How Fuller’s advocating for Crowell for a “special privilege” – not just during deliberations but before they even began- is not a similar circumstance is not apparent.
The Crowell decision was delivered to Isobe in a letter darted December 31, 2007 signed by Fuller, Vice Chair Mark Hubbard and Secretary Judy Lenthall. It said”
“The Board of Ethics finds that the County Charter and County Regulations regarding ethics do no preclude Mr. Crowell from acting in a reprehensive capacity before other County agencies and departments besides the Board of Water and the Water Department so long as he complies with Sect 3-1.7 (Conflicts of Interest) of the County Regulations.”.
But strangely enough there is no mention of any BOE meeting where they would have made this determination in any record of the BOE other than the letter. As a matter of fact, it is not even listed among the 106 cases where advisory opinions were either sought or rendered.
The next case was the one we discussed briefly in part 1 of this report regarding Attorney Jonathan Chun.
This time it was Chun himself soliciting an advisory opinion. In a letter dated January 30, 2008 Chun writes saying he is “serving as chair of the Kauai County Charter Commission” and cites charter section 20.02(D).
He also notes that “(a)s a private attorney I have appeared before the County Planning Commission and the County Liquor Commission. Since my appointment to the charter Commission I have appeared before the County Planning Commission and the County Council”
Chun then attempts a lawyerly ploy to direct the BOE to what he sees as a redeeming technicality.
He points to KCC “Section 3-1.7(e) which states that no “employee shall assist any person or business or act in a representative capacity before a County agency for a contingent compensation in any transaction involving the county’ (emphasis his)”.
He later says “(m)y work before any county agency is done on a hourly basis and not on a contingent fee”.
This almost laughable equivocation of the word contingent- even going to the length of using the term “contingent fee” rather than the usual “contingency fee”- ignores the fact that the word is used in the code to denote a fee that is contingent on performing the actions before the agency, board or commission and not about how the representative’s payment is structured.
But then he goes on to his main point that the KCC’s Section 3.17 only forbids representation “if he has official authority over that county agency” leaving out the previously cited the prohibition in 20.02(D).
The decision? The list of advisory opinions says:
“Relative to information in the Code of Ethics and Charter, Board finds that appointee may continue to appear as a private attorney before other County agencies on behalf of his clients. Dissenting opinion noting abstention based on taking 20.02(D) at face value or with a broad interpretation.”
That dissenting abstention was reportedly from Secretary Lenthall. In a letter describing her apprehension she foreshadows, for the first time in writing, the contentions she, Fuller and Hubbard would later expound upon- that 20.02(D) read strictly would prohibit her from things like applying for a camping permit or testifying as a private individual before a the council or planning commission on a law that would affect her business.
But she also asks “(a)m I required to forgo my responsibilities to the Food Bank (a private non profit corporation) because I serve on the Board of Ethics?”
20.02(D) apparently provides that answer-she must resign from one or the other..
The current ad rules that call for selectively applying either the code of the charter is up for review by the BOE. The new proposed rules are wide ranging and seemingly give the board even more discretionary powers regarding processing of complaints, allowing them to reject cases out of hand, decide them without even having a hearing, and includes a clause to let them not allow any testimony from the complainant.
And although HRS Chapter 91 on ad rules compels a lengthy process with public hearings for changing even a comma, the BOE is talking about just changing the rules willy-nilly because they aren’t “significant changes”.
One of the proposed new rules is to change the “or” to an “and” in the definition of the “Code of Ethics” so it’s not the charter “or” the county code but both taken together on which they base their decisions.
The precedent was set with the Chun case. But how would the board justify their decision?
Look to this space for part three- Deep Thoughts- a “Handy” Diversion.
Monday, April 13, 2009
Unethical culture- Government service with a personal “touch”
The following is the first in a three-part series of articles regarding reported apparent violations of the Kaua`i County Charter by the Kaua`i County Board of Ethics. Much of the report is based on BOE related documents PNN has recently obtained.
(PNN) Unethical culture- Government service with a personal “touch”
Part One- Bored of Ethics on the Board of Ethics?
The Kaua`i County Board of Ethics (BOE) has come under fire in recent years for turning a blind eye to one of the central government service prohibitions in the Kaua`i County Charter (Section 20.02(D)- one that prohibits an “officer or employee of the county”- including those appointed to a board and/or commission (B&C) - from.”(a)ppearing(ing) behalf of private interests before any county board, commission or agency”.
On it’s face the plain wording prohibits people who come to the county’s decision makers for discretionary considerations from, at the same time, “working” for the county, whether their position is paid or volunteer and whether or not their position is directly related to what they are asking for.
But since late 2007 the BOE has issued many “advisory opinions” clearing the way for those who serve on B&C’s to appear before the planning commission, county council and other B&C’s “on behalf of private interests” despite the fact that the provision apparently forbids such appearances.
Recently three members of the BOE itself- including the chair and vice chair- have solicited funding for their organizations from the county council, two making personal appearances, hat in hand, and one arranging for county funding as the “director of fund development” that received the money .
How did we get here? What possible basis for these decisions could there be?
Those are the questions that community members like Horace Stoessel have been asking for years and the answer they have been getting from the BOE is that there exists a “confidential” opinion from the office of the county attorney (CA) that addresses the matter. But that thus far the BOE has refused or has been unable to provide it or even it’s rationale to the public.
PNN has recently obtained documents that, while public record, have not been widely distributed and they will form much of the basis for this series.
While PNN is not in possession of the CA opinion the documents we do have seem to indicate that rather than adhere to and abide by the charter provisions, the opinion relies solely on an ordinance in the Kaua`i County Code, Chapter 3, Article 1, the county’s “Code of Ethics”, which spells out specific prohibitions that do not fully jibe with the charter provision.
What the code does that the charter doesn’t is to restrict the broad prohibitions in the charter to only those that are “direct” interactions and then only for a “significant” consideration or amount of money.
That means that as long as the employee or official is not soliciting his or her own department or B&C and the consideration is not of significant value, there is no prohibition, even though the plain reading of the charter would prohibit such solicitation.
In the next two parts PNN will first present the history of how we got here and then delve into details regarding the CA opinion and the law as well as provide analysis of the various official BOE advisory opinions clearing various B&C members. We’ll also take a look at some “unofficial” memos presented at meetings by BOE members in order to justify their actions.
The reason these prohibitions are there is to prevent corrupt actions by eliminating circumstances that amount to potential “conflicts of interest” (COI) where the actions of an individual not just do but even could conceivably lead to a special benefit not available to the general public.
COI’s are generally of two types: potential (or perceived) and actual. Both are equally important when considering prohibitions on actions and circumstances..
The charter provision prohibits those who come to the county and ask for a discretionary consideration- not one that the public is generally entitled to- from serving on other boards and commissions that exercise similar discretion.
That means that if you routinely appear, hat in hand, on behalf of private interests as part of your “job” – whether hired by a for-profit company or as a volunteer for a non-profit organization- you should not be sitting on a B&C. It’s that simple.
This prevents conflicts from occurring when a member of one board comes before another board while a member of that second board also comes before the first.
On Kaua`i, where the same faces ride the revolving-door between the public and private sector all while sitting on various boards and commissions, this is anything but a rare occurrence.
In the case of members of the BOE is it almost unavoidable, since they not only issue advisory opinions on potential conflicts for any and all employees and officials but are also responsible for processing the public disclosure forms submitted by many of them.
It’s certainly not a rare occurrence when members of a B&C comes before other B&C's- including and especially the council or planning commission, as the number of advisory opinions requested- as well as the number of obvious situations that call for an opinion but for which they aren’t sought- will attest.
The reason for the general prohibition is to avoid, to the extent possible, the circumstance where it must be decided whether there is an actual “quid pro quo”- literally getting something for something- in a “one hand washes the other” situation.
While there is a specific prohibition in the charter (20.02[C]) that forbids an employee or official from “(a)cquir(ing) financial interest in business enterprises which he may be directly involved in official action to be taken by him” the prohibition against “appearing on behalf of a private interest” additionally prevents the potential for two people corrupting of the discretionary decision-making process..
The general prohibition removes the temptation to achieve a “you do something for me, I’ll do something for you” deal which is often times so obvious to the two individuals involved that it doesn’t have to be discussed and therefore become a violation of the actual “tit for tat” that would be illegal.
One example of this occurred just last year and involved, ironically enough, the very charter provision that prohibits people that ask the county for special discretionary consideration from serving on B&C’s.
As PNN has reported Jonathan Chun, an attorney who sits on the charter commission- which has the power to place amendments to the charter on the ballot- routinely represents clients before the county council, as he did recently on behalf of the Board of Realtors regarding the bill to grandfather certain existing “vacation rentals while prohibiting new ones.”
He asked the BOE if he was violating the law and the BOE essentially okayed his appointment saying the law was ambiguous.
Then the BOE turned around and asked the charter commission to put a measure on the ballot to remove section 20.02(D) from the charter.
In the case of the county council at least two ethics complaints have been filed against them over the past few years and a few other councilmembers have apparent ethics problems that the BOE has to power to investigate even without a complaint.
Yet just in the last few weeks three members of the BOE have been soliciting money from the council.
On April 6 at a council budget hearing former Chair and now Vice Chair of the BOE Mark Hubbard- who has led the battle against enforcing the provision- appeared on behalf of the Kauai Planning & Action Alliance (KPAA) where he serves as Treasurer, asking that $15,000 of a $35,000 grant for his organization be restored after it was cut to $20,000 this year.
At the same meeting BOE member Judy Lenthall, Executive Director of the Kaua`i Food Bank came before the council to ask for a chunk of the county budget as she has done many times in the past while serving on the board.
And, as reported in the local newspaper, BOE Chair Leila Fuller, who “serves as YWCA’s director of fund development and contract manager” just received grant money from the county when new Prosecutor Shaylene Iseri-Carvalho “let go two victim witness advocates and transfer(ed) the grant money” to Fuller’s fund.
But it’s not just the BOE. Attorney. On April 1 Lorna Nishimitsu, who serves on a county commission, appeared before the council’s planning committee on behalf of the Kiki`ula Land corporation seeking a time extension on a Westside project.
And these are only this month’s examples...
As we’ll detail in our next reports, some- notably Hubbard, Lenthall and Fuller- have tried to twist the plain reading of the charter by equivocally redefining words to say that to “(a)ppear in behalf of private interests before any county board, commission or agency” could mean “applying for a drivers’ license” or “even playing a round of golf” if “appear before” means literally to “come into sight”
Their arguments also ignore the plain meaning of “appearing on behalf of” which denotes requesting discretionary consideration as opposed to applying or simply requesting non-discretionary services.
Given their own apparent violations of the law and shirking of their duties it is not an unfair question to ask if the individuals are engaging in a prosecutable offense or even whether a criminal conspiracy exists to trigger racketeering laws.
Ordinarily the process for starting such an investigation would be to file a complaint with- yup- the board of ethics.
Some- notably the most conflicted and those that appoint them- claim that they need to allow this now-prohibited double dealing because it seems to them “everyone has a conflict”. But that may just be the circles they run in, specifically those that populate the revolving door good old boys and girls.
But even if that proposition were valid, the law is currently on the books and the usual practice is to follow the law and try to change it- which they did... and they failed.
That also raises the question as to why, if they interpret the law to allow these situations, did they seek to change it last fall?
The truth is that there is certainly no shortage of people on Kaua`i who never come before government bodies on behalf of private interest. As a matter of fact, they are the vast majority. They simply either haven’t been asked or haven’t stepped forward because they fear their lack of membership in “the club” will preclude them from being chosen.
And as long as the law is ignored and the “well-connected” continue to be the only ones in this game of musical chairs, they’ll remain on the sidelines.
Watch for part 2- The Long and Winding Road to Inertia.
(PNN) Unethical culture- Government service with a personal “touch”
Part One- Bored of Ethics on the Board of Ethics?
The Kaua`i County Board of Ethics (BOE) has come under fire in recent years for turning a blind eye to one of the central government service prohibitions in the Kaua`i County Charter (Section 20.02(D)- one that prohibits an “officer or employee of the county”- including those appointed to a board and/or commission (B&C) - from.”(a)ppearing(ing) behalf of private interests before any county board, commission or agency”.
On it’s face the plain wording prohibits people who come to the county’s decision makers for discretionary considerations from, at the same time, “working” for the county, whether their position is paid or volunteer and whether or not their position is directly related to what they are asking for.
But since late 2007 the BOE has issued many “advisory opinions” clearing the way for those who serve on B&C’s to appear before the planning commission, county council and other B&C’s “on behalf of private interests” despite the fact that the provision apparently forbids such appearances.
Recently three members of the BOE itself- including the chair and vice chair- have solicited funding for their organizations from the county council, two making personal appearances, hat in hand, and one arranging for county funding as the “director of fund development” that received the money .
How did we get here? What possible basis for these decisions could there be?
Those are the questions that community members like Horace Stoessel have been asking for years and the answer they have been getting from the BOE is that there exists a “confidential” opinion from the office of the county attorney (CA) that addresses the matter. But that thus far the BOE has refused or has been unable to provide it or even it’s rationale to the public.
PNN has recently obtained documents that, while public record, have not been widely distributed and they will form much of the basis for this series.
While PNN is not in possession of the CA opinion the documents we do have seem to indicate that rather than adhere to and abide by the charter provisions, the opinion relies solely on an ordinance in the Kaua`i County Code, Chapter 3, Article 1, the county’s “Code of Ethics”, which spells out specific prohibitions that do not fully jibe with the charter provision.
What the code does that the charter doesn’t is to restrict the broad prohibitions in the charter to only those that are “direct” interactions and then only for a “significant” consideration or amount of money.
That means that as long as the employee or official is not soliciting his or her own department or B&C and the consideration is not of significant value, there is no prohibition, even though the plain reading of the charter would prohibit such solicitation.
In the next two parts PNN will first present the history of how we got here and then delve into details regarding the CA opinion and the law as well as provide analysis of the various official BOE advisory opinions clearing various B&C members. We’ll also take a look at some “unofficial” memos presented at meetings by BOE members in order to justify their actions.
The reason these prohibitions are there is to prevent corrupt actions by eliminating circumstances that amount to potential “conflicts of interest” (COI) where the actions of an individual not just do but even could conceivably lead to a special benefit not available to the general public.
COI’s are generally of two types: potential (or perceived) and actual. Both are equally important when considering prohibitions on actions and circumstances..
The charter provision prohibits those who come to the county and ask for a discretionary consideration- not one that the public is generally entitled to- from serving on other boards and commissions that exercise similar discretion.
That means that if you routinely appear, hat in hand, on behalf of private interests as part of your “job” – whether hired by a for-profit company or as a volunteer for a non-profit organization- you should not be sitting on a B&C. It’s that simple.
This prevents conflicts from occurring when a member of one board comes before another board while a member of that second board also comes before the first.
On Kaua`i, where the same faces ride the revolving-door between the public and private sector all while sitting on various boards and commissions, this is anything but a rare occurrence.
In the case of members of the BOE is it almost unavoidable, since they not only issue advisory opinions on potential conflicts for any and all employees and officials but are also responsible for processing the public disclosure forms submitted by many of them.
It’s certainly not a rare occurrence when members of a B&C comes before other B&C's- including and especially the council or planning commission, as the number of advisory opinions requested- as well as the number of obvious situations that call for an opinion but for which they aren’t sought- will attest.
The reason for the general prohibition is to avoid, to the extent possible, the circumstance where it must be decided whether there is an actual “quid pro quo”- literally getting something for something- in a “one hand washes the other” situation.
While there is a specific prohibition in the charter (20.02[C]) that forbids an employee or official from “(a)cquir(ing) financial interest in business enterprises which he may be directly involved in official action to be taken by him” the prohibition against “appearing on behalf of a private interest” additionally prevents the potential for two people corrupting of the discretionary decision-making process..
The general prohibition removes the temptation to achieve a “you do something for me, I’ll do something for you” deal which is often times so obvious to the two individuals involved that it doesn’t have to be discussed and therefore become a violation of the actual “tit for tat” that would be illegal.
One example of this occurred just last year and involved, ironically enough, the very charter provision that prohibits people that ask the county for special discretionary consideration from serving on B&C’s.
As PNN has reported Jonathan Chun, an attorney who sits on the charter commission- which has the power to place amendments to the charter on the ballot- routinely represents clients before the county council, as he did recently on behalf of the Board of Realtors regarding the bill to grandfather certain existing “vacation rentals while prohibiting new ones.”
He asked the BOE if he was violating the law and the BOE essentially okayed his appointment saying the law was ambiguous.
Then the BOE turned around and asked the charter commission to put a measure on the ballot to remove section 20.02(D) from the charter.
In the case of the county council at least two ethics complaints have been filed against them over the past few years and a few other councilmembers have apparent ethics problems that the BOE has to power to investigate even without a complaint.
Yet just in the last few weeks three members of the BOE have been soliciting money from the council.
On April 6 at a council budget hearing former Chair and now Vice Chair of the BOE Mark Hubbard- who has led the battle against enforcing the provision- appeared on behalf of the Kauai Planning & Action Alliance (KPAA) where he serves as Treasurer, asking that $15,000 of a $35,000 grant for his organization be restored after it was cut to $20,000 this year.
At the same meeting BOE member Judy Lenthall, Executive Director of the Kaua`i Food Bank came before the council to ask for a chunk of the county budget as she has done many times in the past while serving on the board.
And, as reported in the local newspaper, BOE Chair Leila Fuller, who “serves as YWCA’s director of fund development and contract manager” just received grant money from the county when new Prosecutor Shaylene Iseri-Carvalho “let go two victim witness advocates and transfer(ed) the grant money” to Fuller’s fund.
But it’s not just the BOE. Attorney. On April 1 Lorna Nishimitsu, who serves on a county commission, appeared before the council’s planning committee on behalf of the Kiki`ula Land corporation seeking a time extension on a Westside project.
And these are only this month’s examples...
As we’ll detail in our next reports, some- notably Hubbard, Lenthall and Fuller- have tried to twist the plain reading of the charter by equivocally redefining words to say that to “(a)ppear in behalf of private interests before any county board, commission or agency” could mean “applying for a drivers’ license” or “even playing a round of golf” if “appear before” means literally to “come into sight”
Their arguments also ignore the plain meaning of “appearing on behalf of” which denotes requesting discretionary consideration as opposed to applying or simply requesting non-discretionary services.
Given their own apparent violations of the law and shirking of their duties it is not an unfair question to ask if the individuals are engaging in a prosecutable offense or even whether a criminal conspiracy exists to trigger racketeering laws.
Ordinarily the process for starting such an investigation would be to file a complaint with- yup- the board of ethics.
Some- notably the most conflicted and those that appoint them- claim that they need to allow this now-prohibited double dealing because it seems to them “everyone has a conflict”. But that may just be the circles they run in, specifically those that populate the revolving door good old boys and girls.
But even if that proposition were valid, the law is currently on the books and the usual practice is to follow the law and try to change it- which they did... and they failed.
That also raises the question as to why, if they interpret the law to allow these situations, did they seek to change it last fall?
The truth is that there is certainly no shortage of people on Kaua`i who never come before government bodies on behalf of private interest. As a matter of fact, they are the vast majority. They simply either haven’t been asked or haven’t stepped forward because they fear their lack of membership in “the club” will preclude them from being chosen.
And as long as the law is ignored and the “well-connected” continue to be the only ones in this game of musical chairs, they’ll remain on the sidelines.
Watch for part 2- The Long and Winding Road to Inertia.
Friday, April 10, 2009
ALTERNATE REALITY
ALTERNATE REALITY: It’s the rare individual who hasn’t shaken his or her head in both disbelief and frustration upon reading a press account of an incident they either witnessed or otherwise had first hand knowledge about, wondering if it was the same event as the one reported.
Sometimes it’s just the “playing telephone” effect where a story is conveyed through so many people that the end product is a garbled, barely recognizable version of the original message.
But the when Big Islander Jeff Satcher (through Brad Parsons) pointed us to some national CNN coverage of the community’s efforts to repair and reopen Polihale it seemed to be purely a whole-cloth spin on the real story.
Anyone who has followed the story locally saw a grassroots effort by a community, led by activist and former county council and mayoral candidate Bruce Pleas, to rally the Westside residents to avoid a possible two-year wait until the state could muster the resources to fix and reestablish access to the storm damaged area and do the job themselves- a job that would supposedly cost $4 million.
Slowly Pleas put together the muscle, negotiated with the state and eventually got Troy Martin to donate the materials and machinery to repair an all important bridge. Then the work started and it all came together in a little more than a week.
But to read Mallory’s take it was all due to co-owner Ivan Slack and his company “Napali (sic) Kayak”, a firm that actually operates under questionable legality, using Polihale as a pick-up destination for Na Pali kayak tours.
After three short paragraphs quoting Pleas (pronounced “place”) and describing him as “a local surfer who helped organize the volunteers (emphasis added) and describing the state’s interminably long-term non-plans for repairs, she gives credit where little is due
(I)f the repairs weren't made, some business owners faced the possibility of having to shut down.
Ivan Slack, co-owner of Napali Kayak, said his company relies solely on revenue from kayak tours and needs the state park to be open to operate. The company jumped in and donated resources because it knew that without the repairs, Napali Kayak would be in financial trouble.
"If the park is not open, it would be extreme for us, to say the least," he said. "Bankruptcy would be imminent. How many years can you be expected to continue operating, owning 15-passenger vans, $2 million in insurance and a staff? For us, it was crucial, and our survival was dependent on it. That park is the key to the sheer survival of the business."
So Slack, other business owners and residents made the decision not to sit on their hands and wait for state money that many expected would never come. Instead, they pulled together machinery and manpower and hit the ground running March 23 ...
"We can wait around for the state or federal government to make this move, or we can go out and do our part," Slack said. "Just like everyone's sitting around waiting for a stimulus check, we were waiting for this but decided we couldn't wait anymore."
Then after mentioning the state’s new “Recreation Renaissance” project- the Department of Land and Natural Resources’ (DLNR) rehashing of the roundly rejected “master plan” to commercialize the parks for tourism and as a money generator- it’s right back to Slack who last we heard still operates in a state park without the necessary state permits and in any case exploits our natural resources without paying a fair-share for the use.
.
In a Chaplin-esque “Modern Times” move our would-be hero Slack (or is it slacker hero) heard it was happening and got in front of parade to lead the crowd.
Yet Malloy just keeps up her misinformed version of the non-facts writing:
The park is a fixture on the west side of the island and a favorite spot for many in the area, but it's also a hub for tourists.
Uh, actually rent a cars are banned from using the road and the ones that do routinely get stuck and have to be pulled out by local bystanders. And at the end of the road it’s not clear how it could be called a hub.
Apparently this was all done due to our love for the tourism industry according to Malloy and Slack.
"Tourism is our lifeblood. It's what pays all of our bills," Slack said. "The money that pours in comes from tourism is really an important factor for everyone here in Hawaii, and it's such an important time to encourage tourism."...
"I think it's crucial to say the doors are open, everyone is ready," Slack said. "So when one of the most important parks in Hawaii is closed, it really changes things."
Now, because of their hard work, volunteers hope they'll be ready to send that positive message -- right in time for the tourist season.
Slack said he likes to have business up and running by April 15, and the season gets busy around May 1
The business owners and residents are hopeful that their generous contributions in time and resources mean the park should officially open soon.
And that’s why Polihale will be open soon- because we just love the tourists tearing up the road and overrunning our recreational facilities.
While being interviewed this week for a new documentary on the broad subject of changes in culture, politics and demographics on Kaua`i we were asked about the impression that outsiders have that after the Superferry debacle and people’s direct action in turning it back. There is a new activist community that is poised to push for a more sustainable future and get involved politically to force the corrupt governmental entities to get in line with that vision.
We thought for a minute and asked “well then, where are they? We certainly don’t see them where it matters- at the planning commission, county council and other board and commission meetings where the real decision are made. All we see there is the same old handful of faces.”
Maybe they’re all out working at opening Polihale, which we must admit is certainly as admirable as anything.
The Superferry uprising wasn’t as much about the military or even about state misconduct and outside well-connected businesses getting away with murder..
It was more about protecting our recreational facilities from an onslaught of tens of thousands of campers in thousands of SUV’s, all simultaneously descending on our already stressed-to-the-max if not fully over-used and trashed-out beaches and camping areas.
It just makes sense that if there is a group that is ready to act, they’d act to protect and keep available the precious places where we go to play when work is done.
And it might have been nice if the people and their motivation got the recognition from Mallory and CNN.
----------
Update: Someone called yesterday to say that he was listening to Rush Limbaugh and all of a sudden heard the name “Bruce Pleas” and Rush was telling the whole story of how “this is America” $4 million job done in 8 days by people, blah blah. But interestingly he credited Bruce and the community effort barely mentioning the kayak service- seems like maybe he might have done a little research and found “someone” had a little different version of the story.
Update 2: Well our friend didn’t quite get it all right but Limbaugh did talk about it pretty much with the same tone as CNN. Here’s a link to the transcript
http://www.rushlimbaugh.com/home/daily/site_041009/content/01125104.guest.html
Sometimes it’s just the “playing telephone” effect where a story is conveyed through so many people that the end product is a garbled, barely recognizable version of the original message.
But the when Big Islander Jeff Satcher (through Brad Parsons) pointed us to some national CNN coverage of the community’s efforts to repair and reopen Polihale it seemed to be purely a whole-cloth spin on the real story.
Anyone who has followed the story locally saw a grassroots effort by a community, led by activist and former county council and mayoral candidate Bruce Pleas, to rally the Westside residents to avoid a possible two-year wait until the state could muster the resources to fix and reestablish access to the storm damaged area and do the job themselves- a job that would supposedly cost $4 million.
Slowly Pleas put together the muscle, negotiated with the state and eventually got Troy Martin to donate the materials and machinery to repair an all important bridge. Then the work started and it all came together in a little more than a week.
But to read Mallory’s take it was all due to co-owner Ivan Slack and his company “Napali (sic) Kayak”, a firm that actually operates under questionable legality, using Polihale as a pick-up destination for Na Pali kayak tours.
After three short paragraphs quoting Pleas (pronounced “place”) and describing him as “a local surfer who helped organize the volunteers (emphasis added) and describing the state’s interminably long-term non-plans for repairs, she gives credit where little is due
(I)f the repairs weren't made, some business owners faced the possibility of having to shut down.
Ivan Slack, co-owner of Napali Kayak, said his company relies solely on revenue from kayak tours and needs the state park to be open to operate. The company jumped in and donated resources because it knew that without the repairs, Napali Kayak would be in financial trouble.
"If the park is not open, it would be extreme for us, to say the least," he said. "Bankruptcy would be imminent. How many years can you be expected to continue operating, owning 15-passenger vans, $2 million in insurance and a staff? For us, it was crucial, and our survival was dependent on it. That park is the key to the sheer survival of the business."
So Slack, other business owners and residents made the decision not to sit on their hands and wait for state money that many expected would never come. Instead, they pulled together machinery and manpower and hit the ground running March 23 ...
"We can wait around for the state or federal government to make this move, or we can go out and do our part," Slack said. "Just like everyone's sitting around waiting for a stimulus check, we were waiting for this but decided we couldn't wait anymore."
Then after mentioning the state’s new “Recreation Renaissance” project- the Department of Land and Natural Resources’ (DLNR) rehashing of the roundly rejected “master plan” to commercialize the parks for tourism and as a money generator- it’s right back to Slack who last we heard still operates in a state park without the necessary state permits and in any case exploits our natural resources without paying a fair-share for the use.
.
In a Chaplin-esque “Modern Times” move our would-be hero Slack (or is it slacker hero) heard it was happening and got in front of parade to lead the crowd.
Yet Malloy just keeps up her misinformed version of the non-facts writing:
The park is a fixture on the west side of the island and a favorite spot for many in the area, but it's also a hub for tourists.
Uh, actually rent a cars are banned from using the road and the ones that do routinely get stuck and have to be pulled out by local bystanders. And at the end of the road it’s not clear how it could be called a hub.
Apparently this was all done due to our love for the tourism industry according to Malloy and Slack.
"Tourism is our lifeblood. It's what pays all of our bills," Slack said. "The money that pours in comes from tourism is really an important factor for everyone here in Hawaii, and it's such an important time to encourage tourism."...
"I think it's crucial to say the doors are open, everyone is ready," Slack said. "So when one of the most important parks in Hawaii is closed, it really changes things."
Now, because of their hard work, volunteers hope they'll be ready to send that positive message -- right in time for the tourist season.
Slack said he likes to have business up and running by April 15, and the season gets busy around May 1
The business owners and residents are hopeful that their generous contributions in time and resources mean the park should officially open soon.
And that’s why Polihale will be open soon- because we just love the tourists tearing up the road and overrunning our recreational facilities.
While being interviewed this week for a new documentary on the broad subject of changes in culture, politics and demographics on Kaua`i we were asked about the impression that outsiders have that after the Superferry debacle and people’s direct action in turning it back. There is a new activist community that is poised to push for a more sustainable future and get involved politically to force the corrupt governmental entities to get in line with that vision.
We thought for a minute and asked “well then, where are they? We certainly don’t see them where it matters- at the planning commission, county council and other board and commission meetings where the real decision are made. All we see there is the same old handful of faces.”
Maybe they’re all out working at opening Polihale, which we must admit is certainly as admirable as anything.
The Superferry uprising wasn’t as much about the military or even about state misconduct and outside well-connected businesses getting away with murder..
It was more about protecting our recreational facilities from an onslaught of tens of thousands of campers in thousands of SUV’s, all simultaneously descending on our already stressed-to-the-max if not fully over-used and trashed-out beaches and camping areas.
It just makes sense that if there is a group that is ready to act, they’d act to protect and keep available the precious places where we go to play when work is done.
And it might have been nice if the people and their motivation got the recognition from Mallory and CNN.
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Update: Someone called yesterday to say that he was listening to Rush Limbaugh and all of a sudden heard the name “Bruce Pleas” and Rush was telling the whole story of how “this is America” $4 million job done in 8 days by people, blah blah. But interestingly he credited Bruce and the community effort barely mentioning the kayak service- seems like maybe he might have done a little research and found “someone” had a little different version of the story.
Update 2: Well our friend didn’t quite get it all right but Limbaugh did talk about it pretty much with the same tone as CNN. Here’s a link to the transcript
http://www.rushlimbaugh.com/home/daily/site_041009/content/01125104.guest.html
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