DAT’S ONE DEAD PUPPY: Once upon a time a man named Kevin took over operations of a public cesspool after the previous overseer had done too good a job of keeping the stink away from our noses. The new guy quickly named himself King of the Dung Heap and decided that, with no experience, he would start digging around, flailing way at the pipes with a dull pickaxe and digging a deeper hole in his own warped image, leaving a messy open sewage pit- know as the current state of the state elections bureau.
So the resignation (thanks to Larry Geller for the apparent only posting of the letter) of Chief Elections Officer Kevin “King” Cronin comes with no element of sorrow- only a sense of dismay and disgust at the prospect of cleaning up his mess.
Our coverage of the, to be chartable, “foibles” of this arrogant boob has been extensive from the first inking of screw-ups to come with his having “forgot” to file to vote upon appointment, through his arrogant assent to royal “I am the state” status with his “because I said so” rulings in the Kirk Caldwell fiasco at the filing deadline- as we beat to death here, here, here, here, here and here- followed by our two takes on his “reckless disregard (for) procurement laws” in choosing to issue a long term contract for an expensive. inferior set of voting machines, which led to our still exclusive report regarding his part in a race discrimination suit in his only previous job semi-related to elections which occurred during his tenure in Wisconsin.
But perhaps the most annoying and ultimately arrogant thing in his resignation letter is this statement, as reported extensively by some media outlets without mention of his screw ups – most notably on the “that’s-what-passes-for-News-Now” conglomeration of TV stations- was how “smoothly” the 2008 elections ran.
Seems no one remembers the absurdly confusing changes and the unneeded “check box”
for party selection in the primary that more than likely led to unnecessarily voided votes and an unusual (see second entry)- and later found to be manipulated- number of spoiled ballots and overvotes.
Then of course there was Cronin’s “rules are for suckers” debacle as we examined a few times and, although there are finally new, or we should say some, administrative rules up for approval- after Cronin was forced to provide them when he lost yet another law suit resulting from his egotism and pomposity- it’s anyone’s guess if they will actually fix the underlying problems over the potential for neighbor island vote flipping and other issues resulting from his penchant for pulling rulings out his, uh, ear.
We were calling for Cronin’s resignation last August and now that it’s come a year and a half too late it’s particularly unsatisfying given the absolute mess he left and, the not just the lack of any shovel but, a concerted effort by the governor and legislature to deny use of any implement to dig our way toward conducting an election in less than a year.
We’ll probably have moments when we wish we still had the prince of prevarication to kick around but today isn’t one of them.
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We’ve got some real- and outside- world things to take care of tomorrow and Friday so we’ll dispense with our agoraphobic activities until Monday unless we get some 28 hour days.
Wednesday, December 2, 2009
Tuesday, December 1, 2009
WHERE DO THE HUSKIES GO?
WHERE DO THE HUSKIES GO?: When we first heard that former mayoral candidate Rolf Bieber was appointed to the Kaua`i Board of Ethics (BOE) and heard he was seeking to clean up this town a la Marshall Dillon our world-weary, seen-it-all, smart-ass response was a decidedly satirical “good luck Chuck”.
So it’s with more than a little surprise that today the local newspaper’s Mike Levine has reported that one of the worst offenders of the charter’s ban on board and commission volunteers appearing before the county government on behalf of private interests while serving on other boards of commissions, Lorna Nishimitsu, has joined one her associates, Jonathan Chun, in resigning her Board of Review position.
It comes on the heels of course of the BOE’s decision to advise former Charter Review Commissioner (CRC) Mattie Yoshioka that she was in violation of the charter, despite a previous opinion clearing Chun who also served on the CRC.
But Nishimitsu- who has cut her teeth defending some of the more scummy developers and landowners for old boy network charter member attorney Walton Hong’s firm before moving on to Graham’s more “respectable” jerkwad-representing law corporation- had an interesting parting shot directed at the weasels on the ethics board that are also themselves in violation but have yet to resign.
After the perfunctory resignation her letter goes on to say:
“On a final note, however, please consider the irony that some of the authors of the Advisory Opinion (who, like myself, have appeared before other boards, commissions, agencies or the Council on matters unrelated to their duties as board or commission members) apparently intend to continue to serve on the Board of Ethics.”
That would be Mark Hubbard. Lei Fuller and Judy Lenthall all of whose stories have been well documented in this space.
Well, better late than never although, as with Chun, it’s a little disconcerting that their “boss” Mike Belles is a former county attorney who, by his silence in allowing them to work on cases before the county council, has also apparently been complicit in allowing the whole back-scratching county system to develop and pervade.
It’s sounding hollower and hollower each time the crony-corralling Office of Boards and Commissions Administrator John Isobe repeats County Attorney Al Castillo’s handwringing over, as Levine reports, some purported “chilling effect, causing a mass exodus of county volunteers” if the charter were enforced.
Are they implying that the tens of thousands of Kaua`i denizens who are unconflicted aren't “board and commission material”– and that the few hundred well connected revolving door beneficiaries apparently are- simply because they lack a rubber stamp- or more often, can’t be paid off to do the mayor’s bidding with a favorable decision by a fellow beneficiary.
But looking beyond the mucky muck and his campaign supporters would take a mayor who appoints people based on what they know, not who they know, a concept that when suggested to most people causes a short silence before rip-roaring roll-on-the-floor laughter erupts.
So it’s with more than a little surprise that today the local newspaper’s Mike Levine has reported that one of the worst offenders of the charter’s ban on board and commission volunteers appearing before the county government on behalf of private interests while serving on other boards of commissions, Lorna Nishimitsu, has joined one her associates, Jonathan Chun, in resigning her Board of Review position.
It comes on the heels of course of the BOE’s decision to advise former Charter Review Commissioner (CRC) Mattie Yoshioka that she was in violation of the charter, despite a previous opinion clearing Chun who also served on the CRC.
But Nishimitsu- who has cut her teeth defending some of the more scummy developers and landowners for old boy network charter member attorney Walton Hong’s firm before moving on to Graham’s more “respectable” jerkwad-representing law corporation- had an interesting parting shot directed at the weasels on the ethics board that are also themselves in violation but have yet to resign.
After the perfunctory resignation her letter goes on to say:
“On a final note, however, please consider the irony that some of the authors of the Advisory Opinion (who, like myself, have appeared before other boards, commissions, agencies or the Council on matters unrelated to their duties as board or commission members) apparently intend to continue to serve on the Board of Ethics.”
That would be Mark Hubbard. Lei Fuller and Judy Lenthall all of whose stories have been well documented in this space.
Well, better late than never although, as with Chun, it’s a little disconcerting that their “boss” Mike Belles is a former county attorney who, by his silence in allowing them to work on cases before the county council, has also apparently been complicit in allowing the whole back-scratching county system to develop and pervade.
It’s sounding hollower and hollower each time the crony-corralling Office of Boards and Commissions Administrator John Isobe repeats County Attorney Al Castillo’s handwringing over, as Levine reports, some purported “chilling effect, causing a mass exodus of county volunteers” if the charter were enforced.
Are they implying that the tens of thousands of Kaua`i denizens who are unconflicted aren't “board and commission material”– and that the few hundred well connected revolving door beneficiaries apparently are- simply because they lack a rubber stamp- or more often, can’t be paid off to do the mayor’s bidding with a favorable decision by a fellow beneficiary.
But looking beyond the mucky muck and his campaign supporters would take a mayor who appoints people based on what they know, not who they know, a concept that when suggested to most people causes a short silence before rip-roaring roll-on-the-floor laughter erupts.
Monday, November 30, 2009
OPEN FOOT, INSERT MOUTH
OPEN FOOT, INSERT MOUTH: The obvious late-night-comedian-fodder way the two headlines appeared one above the other, at least on-line-
Police chief welcomes ‘constructive criticism’
Doughnuts help sustain leadership program.
-notwithstanding, the soft-peddled content of reporter Paul Curtis’ articles only serves to underscore the tin ear Chief Darryl Perry has for the way his communications with the public sound to the average citizen’s ear.
Apparently Perry was so shocked and apparently angry over receiving a career-first “needs improvement” grade on an evaluation- this time from a member of the police commission- when it comes to whether he “(u)nderstands ramifications of actions to others, the organization and the county,” that he felt the need to share the full evaluation with Curtis who could be counted on to play up the good parts and pooh-pooh the bad.
But what was even more dismaying than Curtis’ apparent need to suck up to the chief and department he covers- as opposed to putting their feet to the fire as “crime-beat” reporters are supposed to do- was what Perry did upon hearing from someone other than the public that perhaps his PR skills are often along the lines of “open mouth-insert foot”.
Curtis writes that upon receiving the evaluation- which other than Curtis’ characterizations has not been shared in full with the public although PNN has requested a copy either be posted on-line or be emailed to us- instead of taking the apparently “blind” or unattributed assessment to heart Perry’s first reaction was to try to track down who would dare to give god’s gift to KPD a less than “exceptional” grade.
Curtis reports that:
“So far nobody has ‘fessed up” to being the one or two commissioners responsible for the “Needs Improvement” scores, (Perry) said. This (needs improvement) ranking scores a two on a scale of one to five, with five being exceptional and one being unsatisfactory.
Fessed up? Seems the chief thinks this is tantamount to a crime. Perhaps a lineup and the third degree are in order.
Was there something unclear about the obvious fear of ostracization and ridicule from his or her peers that the one commissioner with the guts to declare the emperor naked felt in putting it in an anonymous evaluation rather than saying it aloud?
According to some in the criminal justice system the widely touted “vast improvement in morale” on the force has come at the expense of many, including some officers, feeling free enough to questions the polices that result from the politics of the chief and certain commissioners in areas such as medical marijuana, the innocent-until-guilty civil rights of those approached and/or detained and the chief’s acknowledge arming-to-the-teeth” in reaction- many say overreacting- to the non-violent civil disobedience at the Nawiliwili Superferry protests.
Apparently when no one “’fessed up” to the bad grade on his or her own Perry still wasn’t satisfied.
After the evaluation was finished in late October, two years into his current three-year contract, Perry met individually with each of the seven commissioners, not just to identify who was responsible for the low marks in two of the 28 categories, but to seek specifics on why he got the low marks so that he could improve in the areas of “Tracks and adheres to budgetary allocations” and “Understands ramifications of actions to others, the organization and the county,” he said.
And if the message that this kind of mark on his record is unacceptable was still unclear he used a well-trod bureaucratic bromide to make it perfectly clear by, according to Curtis, saying
“Constructive criticism is always welcome,”
implying that this was anything but constructive.
The tag team of Perry and ex-marine, now “pastor” Commissioner Tom Iannucci have been almost comical in the way they manage to bungle public relations whenever given the opportunity despite widespread ridicule in the community for their foible-filled fanaticism.
Many, even among Perry’s strongest supporters, have been almost relieved that his semi-regular column in the local newspaper has become more semi than regular in recent months.
Most people can take a hint. Obviously some cannot.
Police chief welcomes ‘constructive criticism’
Doughnuts help sustain leadership program.
-notwithstanding, the soft-peddled content of reporter Paul Curtis’ articles only serves to underscore the tin ear Chief Darryl Perry has for the way his communications with the public sound to the average citizen’s ear.
Apparently Perry was so shocked and apparently angry over receiving a career-first “needs improvement” grade on an evaluation- this time from a member of the police commission- when it comes to whether he “(u)nderstands ramifications of actions to others, the organization and the county,” that he felt the need to share the full evaluation with Curtis who could be counted on to play up the good parts and pooh-pooh the bad.
But what was even more dismaying than Curtis’ apparent need to suck up to the chief and department he covers- as opposed to putting their feet to the fire as “crime-beat” reporters are supposed to do- was what Perry did upon hearing from someone other than the public that perhaps his PR skills are often along the lines of “open mouth-insert foot”.
Curtis writes that upon receiving the evaluation- which other than Curtis’ characterizations has not been shared in full with the public although PNN has requested a copy either be posted on-line or be emailed to us- instead of taking the apparently “blind” or unattributed assessment to heart Perry’s first reaction was to try to track down who would dare to give god’s gift to KPD a less than “exceptional” grade.
Curtis reports that:
“So far nobody has ‘fessed up” to being the one or two commissioners responsible for the “Needs Improvement” scores, (Perry) said. This (needs improvement) ranking scores a two on a scale of one to five, with five being exceptional and one being unsatisfactory.
Fessed up? Seems the chief thinks this is tantamount to a crime. Perhaps a lineup and the third degree are in order.
Was there something unclear about the obvious fear of ostracization and ridicule from his or her peers that the one commissioner with the guts to declare the emperor naked felt in putting it in an anonymous evaluation rather than saying it aloud?
According to some in the criminal justice system the widely touted “vast improvement in morale” on the force has come at the expense of many, including some officers, feeling free enough to questions the polices that result from the politics of the chief and certain commissioners in areas such as medical marijuana, the innocent-until-guilty civil rights of those approached and/or detained and the chief’s acknowledge arming-to-the-teeth” in reaction- many say overreacting- to the non-violent civil disobedience at the Nawiliwili Superferry protests.
Apparently when no one “’fessed up” to the bad grade on his or her own Perry still wasn’t satisfied.
After the evaluation was finished in late October, two years into his current three-year contract, Perry met individually with each of the seven commissioners, not just to identify who was responsible for the low marks in two of the 28 categories, but to seek specifics on why he got the low marks so that he could improve in the areas of “Tracks and adheres to budgetary allocations” and “Understands ramifications of actions to others, the organization and the county,” he said.
And if the message that this kind of mark on his record is unacceptable was still unclear he used a well-trod bureaucratic bromide to make it perfectly clear by, according to Curtis, saying
“Constructive criticism is always welcome,”
implying that this was anything but constructive.
The tag team of Perry and ex-marine, now “pastor” Commissioner Tom Iannucci have been almost comical in the way they manage to bungle public relations whenever given the opportunity despite widespread ridicule in the community for their foible-filled fanaticism.
Many, even among Perry’s strongest supporters, have been almost relieved that his semi-regular column in the local newspaper has become more semi than regular in recent months.
Most people can take a hint. Obviously some cannot.
Wednesday, November 25, 2009
LUCKY DOG
LUCKY DOG: One advantage attorneys have over we poor mortals when looking at the “I can’t believe they just said that” Kaua`i county government machinations is that they spend most of their time with noses stuck in the archaic minutia of prior court decisions.
Through such tedium Kaua`i attorney Charley Foster has apparently found a Hawai`i Supreme Court precedent- Fasi v. City Council of City and County of Honolulu- that makes the county attorney’s opinion on charter section 20.02(D) the “lousy lawyering” asserted by Board of Ethics member Paul Weil in the letter to County Attorney Al Castillo we posted Monday.
In his post yesterday at his Planet Kaua`i blog Foster first provides an excellent brief synopsis of the "absurdities” of the “absurdity theory” in the opinion as well as the apparent rejection of the hierarchy of law doctrine saying:
Recall the recent county attorney opinion that asserted that the provision leads to results just too absurd to comply with, and must therefore be read in conjunction with more lenient county ordinances so that officers, employees, etc can in fact appear on behalf of private interests.
Leaving aside the point that an honest reading of the provision simply does not lead to absurd results, and that the ordinance in question doesn't actually apply to the controversial section, what troubles me about the County Attorney's assertion is that it appears to rest on a fundamental misapprehension of the hierarchy of law represented by charters and ordinances. It is axiomatic that a county charter is the fundamental law and that ordinances that fail to conform to charters are what in the federal context would be called "unconstitutional."
Then he drops the bombshell that should end any controversy.
However, it's one thing to assert a legal proposition, and another to back it up with legal authority. As luck would have it, the other day I ran across the case of Fasi v. City Council of City and County of Honolulu, 72 Haw. 513, 823 P.2d 742 (Haw. 1992), in which the Hawaii Supreme Court stated unequivocally that "[a] basic tenet of municipal corporation law is that an ordinance which conflicts with an express provision in a charter is invalid."
The proposition is self-evident that an ordinance must conform to, be subordinate to, not conflict with and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state. Ordinances must not only conform with the express terms of the charter, but they must not conflict in any degree with its object or with the purposes for which the local corporation is organized.
this applies whether or not a charter provision led to "absurd results." The only remedy in such a case would be to amend the charter. It is certainly not permissible to alter a charter's clear requirements by resort to a contrary ordinance.
But one irony that Foster might have missed is that the attorney who argued and won the case for the Fasi administration was none other than then Deputy Corp. Council for Honolulu Jonathan Chun whose request for a BOE ruling on the applicability of 20.02(D) to his job of appearing on behalf of clients before the county council and whether it conflicted with his role on the charter commission, started the ball rolling on the series of events regarding the provision.
It would seem that the tight-lipped Chun should have been very familiar with this decisions but remained silent on the matter
It’s one thing to be accused of lousy lawyering. But matters of lazy lawyering are if anything worse and many times lead to incompetence and even misconduct complaints to the bar.
If Castillo and his deputy Mauna Kea Trask want to avoid such talk it might behoove them to reconsider their ill- or under-considered “opinion” as to whether any “officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency” as stated in charter section 20.02(D).
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We’ll be back Monday but in the meantime check out Kaua`i activist Ann Punohu’s new blog, lengthily titled “Punohu's Politics, Environment and Culture Blog - A blog to keep interested readers up on what Anne Punohu is doing in political, environmental and cultural issues and activities. Updated frequently. If you like Hawaiian culture, political or environmental issues you will love this blog”.
Through such tedium Kaua`i attorney Charley Foster has apparently found a Hawai`i Supreme Court precedent- Fasi v. City Council of City and County of Honolulu- that makes the county attorney’s opinion on charter section 20.02(D) the “lousy lawyering” asserted by Board of Ethics member Paul Weil in the letter to County Attorney Al Castillo we posted Monday.
In his post yesterday at his Planet Kaua`i blog Foster first provides an excellent brief synopsis of the "absurdities” of the “absurdity theory” in the opinion as well as the apparent rejection of the hierarchy of law doctrine saying:
Recall the recent county attorney opinion that asserted that the provision leads to results just too absurd to comply with, and must therefore be read in conjunction with more lenient county ordinances so that officers, employees, etc can in fact appear on behalf of private interests.
Leaving aside the point that an honest reading of the provision simply does not lead to absurd results, and that the ordinance in question doesn't actually apply to the controversial section, what troubles me about the County Attorney's assertion is that it appears to rest on a fundamental misapprehension of the hierarchy of law represented by charters and ordinances. It is axiomatic that a county charter is the fundamental law and that ordinances that fail to conform to charters are what in the federal context would be called "unconstitutional."
Then he drops the bombshell that should end any controversy.
However, it's one thing to assert a legal proposition, and another to back it up with legal authority. As luck would have it, the other day I ran across the case of Fasi v. City Council of City and County of Honolulu, 72 Haw. 513, 823 P.2d 742 (Haw. 1992), in which the Hawaii Supreme Court stated unequivocally that "[a] basic tenet of municipal corporation law is that an ordinance which conflicts with an express provision in a charter is invalid."
The proposition is self-evident that an ordinance must conform to, be subordinate to, not conflict with and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state. Ordinances must not only conform with the express terms of the charter, but they must not conflict in any degree with its object or with the purposes for which the local corporation is organized.
this applies whether or not a charter provision led to "absurd results." The only remedy in such a case would be to amend the charter. It is certainly not permissible to alter a charter's clear requirements by resort to a contrary ordinance.
But one irony that Foster might have missed is that the attorney who argued and won the case for the Fasi administration was none other than then Deputy Corp. Council for Honolulu Jonathan Chun whose request for a BOE ruling on the applicability of 20.02(D) to his job of appearing on behalf of clients before the county council and whether it conflicted with his role on the charter commission, started the ball rolling on the series of events regarding the provision.
It would seem that the tight-lipped Chun should have been very familiar with this decisions but remained silent on the matter
It’s one thing to be accused of lousy lawyering. But matters of lazy lawyering are if anything worse and many times lead to incompetence and even misconduct complaints to the bar.
If Castillo and his deputy Mauna Kea Trask want to avoid such talk it might behoove them to reconsider their ill- or under-considered “opinion” as to whether any “officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency” as stated in charter section 20.02(D).
-----------
We’ll be back Monday but in the meantime check out Kaua`i activist Ann Punohu’s new blog, lengthily titled “Punohu's Politics, Environment and Culture Blog - A blog to keep interested readers up on what Anne Punohu is doing in political, environmental and cultural issues and activities. Updated frequently. If you like Hawaiian culture, political or environmental issues you will love this blog”.
Tuesday, November 24, 2009
PREROGATIVE BY PAVLOV
PREROGATIVE BY PAVLOV: The Hawai`i Supreme Court’s recent refusal to overturn 5th Circuit Judge Kathleen Watenabe’s “irretrievably intertwined” ruling specifically dealing with the Kaua`i County Council’s Executive Session (ES) 177 was, though disappointing for both open governance advocates and the Office of Information Practices (OIP), not surprising given the deference given to lower court decisions.
But after reading a letter to the editor from former 5th circuit Judge Alfred “let ’em go” Laureta, it’s more apparent then ever that Kaua`i judges give the same or greater deference to the machinations of local administrative and legislative operatives, no matter how bizarre or even corrupt.
Laureta’s un-blanching support of the council- even to the point of misrepresenting the suit’s derivation- isn’t that different from the actual ruling in it’s use of overgeneralization and even misrepresentation.
He writes:
The council had been criticized for its perceived lack of complete transparency by some members of the council and criticized as well by members of the public for expending taxpayer funds to legally defend its position on the issue...
Disclosure of the minutes as demanded would be equivalent to the elimination of the need for executive sessions. All council deliberations will be open to the public. Discussions involving the legal rights of the county — to sue or not to sue, to settle or not to settle, how much to pay or not to pay, legal strategies, etc. With the public being privy to all this, expediency of council action will be highly questionable.
But of course the reality is that there’s no one who doesn’t recognize the need to executive sessions for matters under litigation, settlement conferences and other similar circumstances.
What people object to is the use of one specific exemption under HRS 95-5(a)4 that is used and abused to discuss and “deliberate toward a decision” on public policy matters and pending legislation under the guise of “consult(ing) with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.
But while Laureta- whose middle moniker came from his penchant for releasing dangerous criminals due to local family connections- and his deference to allowing “any kine” from his cronies in local government rose from the close knit plantation connections prevalent in government in his day, in some ways little has changed... especially when it comes to appointing local judges.
It has become more and more apparent that going to current 5th Circuit Judges Watenabe and Randall Valenciano for enforcement of the constitutional and state legislative restrictions on government is an exercise in futility most likely because that’s the arena in which they were engaged prior to appointment to the bench.
Watenabe, a former county attorney and career-long government lawyer and Valenciano, a former councilperson, naturally have a bias toward the case presented by their former colleagues unlike in other jurisdiction where appointments are often made from among those with either a private criminal and/or civil background or the prosecutorial realm.
Anyone who thinks that the courts have progressed since Laureta’s days and perhaps they will enforce the charter’s ethics provisions in sections 20.02(D) plain language prohibition on “(a)ppear(ing) in behalf of private interests before any county board, commission or agency” ought to look long and hard at whether they can get a fair and unbiased hearing before either of the Kaua`i circuit court judges.
But after reading a letter to the editor from former 5th circuit Judge Alfred “let ’em go” Laureta, it’s more apparent then ever that Kaua`i judges give the same or greater deference to the machinations of local administrative and legislative operatives, no matter how bizarre or even corrupt.
Laureta’s un-blanching support of the council- even to the point of misrepresenting the suit’s derivation- isn’t that different from the actual ruling in it’s use of overgeneralization and even misrepresentation.
He writes:
The council had been criticized for its perceived lack of complete transparency by some members of the council and criticized as well by members of the public for expending taxpayer funds to legally defend its position on the issue...
Disclosure of the minutes as demanded would be equivalent to the elimination of the need for executive sessions. All council deliberations will be open to the public. Discussions involving the legal rights of the county — to sue or not to sue, to settle or not to settle, how much to pay or not to pay, legal strategies, etc. With the public being privy to all this, expediency of council action will be highly questionable.
But of course the reality is that there’s no one who doesn’t recognize the need to executive sessions for matters under litigation, settlement conferences and other similar circumstances.
What people object to is the use of one specific exemption under HRS 95-5(a)4 that is used and abused to discuss and “deliberate toward a decision” on public policy matters and pending legislation under the guise of “consult(ing) with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.
But while Laureta- whose middle moniker came from his penchant for releasing dangerous criminals due to local family connections- and his deference to allowing “any kine” from his cronies in local government rose from the close knit plantation connections prevalent in government in his day, in some ways little has changed... especially when it comes to appointing local judges.
It has become more and more apparent that going to current 5th Circuit Judges Watenabe and Randall Valenciano for enforcement of the constitutional and state legislative restrictions on government is an exercise in futility most likely because that’s the arena in which they were engaged prior to appointment to the bench.
Watenabe, a former county attorney and career-long government lawyer and Valenciano, a former councilperson, naturally have a bias toward the case presented by their former colleagues unlike in other jurisdiction where appointments are often made from among those with either a private criminal and/or civil background or the prosecutorial realm.
Anyone who thinks that the courts have progressed since Laureta’s days and perhaps they will enforce the charter’s ethics provisions in sections 20.02(D) plain language prohibition on “(a)ppear(ing) in behalf of private interests before any county board, commission or agency” ought to look long and hard at whether they can get a fair and unbiased hearing before either of the Kaua`i circuit court judges.
Monday, November 23, 2009
(PNN) BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”
BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”: (PNN) -- In a stunningly blunt couple of letters written in mid September, Board of Ethics member, attorney Paul Weil, scathingly attacked and belittled both a county attorney opinion regarding the conflict of interest provisions of the controversial county charter section 20.02(D) and County Attorney Al Castillo’s behavior and professional abilities.
In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"
Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.
Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.
He wrote:
I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.
But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.
Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.
For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.
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From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:
I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.
I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.
Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.
Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.
As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.
Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.
I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.
I’ll be happy to discuss.
PAUL
----------
Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.
There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?
al
--------
From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.
Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.
Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.
There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.
I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.
I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".
You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.
You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?
I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.
Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.
(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);
(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).
(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;
(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)
(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.
Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.
Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!
Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL
*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"
In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"
Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.
Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.
He wrote:
I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.
But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.
Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.
For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.
--------------
From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:
I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.
I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.
Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.
Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.
As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.
Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.
I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.
I’ll be happy to discuss.
PAUL
----------
Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.
There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?
al
--------
From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.
Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.
Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.
There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.
I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.
I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".
You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.
You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?
I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.
Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.
(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);
(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).
(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;
(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)
(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.
Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.
Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!
Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL
*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"
Friday, November 20, 2009
POLITICAL WON’T
POLITICAL WON’T: Our post Wednesday on the flakey “opinion” given to the charter commission regarding the county manager issue drew a couple of comments that deserve exposition, on an issue we kind of glossed over because it seemed to be self-apparent to us- but obviously not to everybody.
Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked
...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.
Attorney blogger Charley Foster was of course more to the legal point saying
I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.
So let’s look at the words in the relevant constitution and statue passages.
In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:
Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.
Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...
HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.
Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).
Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.
As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive
All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.
And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.
It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.
We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.
Trask writes:
According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).
Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).
So let’s look at Trask’s arguments one by one:
The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.
Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.
Trask continues:
Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.
We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.
He then seeks to establish what may be called a four prong test.
The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:
1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.
True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.
2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.
It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.
And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?
3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.
We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.
4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.
Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.
Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.
The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.
-------
Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.
Doug also asked
... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?
That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.
Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.
For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.
Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.
But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.
The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.
But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.
Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.
But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.
Clear as mud?
--------
With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.
Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked
...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.
Attorney blogger Charley Foster was of course more to the legal point saying
I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.
So let’s look at the words in the relevant constitution and statue passages.
In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:
Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.
Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...
HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.
Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).
Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.
As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive
All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.
And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.
It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.
We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.
Trask writes:
According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).
Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).
So let’s look at Trask’s arguments one by one:
The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.
Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.
Trask continues:
Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.
We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.
He then seeks to establish what may be called a four prong test.
The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:
1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.
True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.
2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.
It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.
And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?
3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.
We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.
4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.
Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.
Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.
The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.
-------
Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.
Doug also asked
... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?
That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.
Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.
For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.
Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.
But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.
The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.
But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.
Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.
But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.
Clear as mud?
--------
With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.
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