(PNN) KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.

KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.

(PNN)-- In a masterful piece of political theater, Councilperson Lani Kawahara succeeded in putting a discussion of her and Tim Bynum’s reforms on the council’s agenda at either the July 8 or July 22 meeting with even Chair Kaipo Asing in the end being forced to reluctantly vote “aye” along with the other six councilmembers.

Two weeks ago Bynum’s attempt to add a resolution to that day’s agenda was nixed by the County Attorney Al Castillo as being a violation of the Sunshine Law

This time when the subject of approval of the agenda came up, it was Kawahara who asked to simply add a “communication” to the agenda that would require discussion of the changes be discussed on the agenda at the next council meeting on July 8.

Last meeting Bynum and Kawahara were opposed by the other five councilmembers. This time though the first chink in the armor was an apparent 180 by councilmember Jay Furfaro who immediately said that “if the purpose is discussion... that doesn’t sound unreasonable”,

Although he tried to block an attempt to discuss council rules at the last council meeting, public pressure seemed to have caused him a change of heart.

Then Castillo surprisingly decided that he could split the baby and announced that, in his legal opinion, discussing adding the matter to a future agenda differed from discussing the actual subject matter as far as the Sunshine Law was concerned.

“It’s just a communication”, he told an apparently stunned Asing and the rest of the council. “This time there’s no substance to it (so) it’s not of ‘reasonably major importance’ and will not ‘effect a significant number of persons’.”

In her presentation, an animated and obviously nervous Kawahara stood up and listed the reforms to the council rules she and Bynum have requested be discussed including on-line access to all public documents, timely distribution of materials addressed to councilmembers and most importantly, an enforcement of the rule providing for councilpersons to have the ability to place matters on the agenda.

The issues are fully detailed at their kauaiinfo web site which has recently been updated with minutes of recent council meetings going back to February 25.

She also referred to the on-line petition supporting the changes which, she said had 290 signatures. Her “communication” asked that discussion of these matters be placed on the agenda of the next regular council meeting, July 8.

That gave Councilperson Darryl Kaneshiro an opening to say to Castillo “so the 290 signatures is not a significant amount” intimating that if 290 people were concerned with the issue that would constitute “a significant number of persons” who would be effected.

But Castillo reiterated that by only introducing a communication to place the matter on a future agenda, that is the action that must meet the standard and that the actual substance would be discussed on July 8 at a duly agendaed meeting

“I’ve got to split this” he said, “It’s the legal analysis”.

Asing still not satisfied said “placement of the minutes on the web site?” referring to one of the reforms Kawahara and councilperson Tim Bynum have asked for. “That’s going to affect the whole county.”

But Castillo again said he was separating the substance from the request to put it on a future agenda.

Furfaro then reiterated his support for having the discussion saying “by a 2/3 vote this council has the ability to put this matter on the agenda” although he noted that the chair has “the management rights” to say on which agenda it would appear.

Then in a jaw-dropping, politically tone-deaf statement Asing took one last stab at retaining control.

“Why would we want to discuss in-house rules with the public?” he asked Castillo. “There are in-house rules and you want to take that and discuss that in a public forum? Why would you want to do that?”

Furfaro then pointed out that “our rules are passed in a public forum, by resolution” and Bynum added that they can be changed by “subsequent resolution” all in public, open meetings.

Asing then called what he said would be a “short recess”.

According to witnesses, during the next hour a flurry of animated conversations between Asing and Castillo and County Clerk Peter Nakamura ensued. Toward the end of the hour Nakamura was observed conversing with Kaneshiro.

When the meeting was called back to order, in an obviously scripted manner a defeated Asing immediately called on Kaneshiro who, in a face-saving move for both himself and Asing, noted that the request was encroaching on the managerial duties of the chair and asked that the communication be amended to provide for adding the item to either the July 8 meeting or, if the agenda was too full, the July 22 meeting.

Without discussion Asing called for a vote on the amendment, to which all councilmember including Asing voted “aye”.

Then also without discussion the council unanimously voted aye to adding the item to the agenda of the meeting of either July 8th or 22nd.

Neither councilmember Derek Kawakami nor Dickie Chang ventured a comment during the discussion essentially exhibiting a deer in the headlights expressions along with a bewildered “what just happened” look after the item was added to the future agenda.

But the day of challenges to the abuse of power by, not just the chair but under his direction, Nakamura (as PNN has detailed over the past two weeks) was not over.

This time it was Bynum taking the reigns in order to highlight the way he and other councilmembers have been denied access to communication that are addressed to them.

First Bynum detailed how a bill that was on this week’s agenda related to changes to the shoreline setback law that the council passed last year had been time-stamped as “received” by the clerk on May 12 but, Bynum said, he had not gotten the new bill until June 12 and the related documents “just yesterday”

He noted that council rules require the county clerk to “forward at once” all communication to those to whom they are addressed, noting the measure was addressed to the “chair and all councilmembers”.

The bill had come from the planning department along with amendments, transcripts and staff reports that resulted from planning commission review.

Bynum said that he had been following the bill closely and had even recently asked the planning director what the delay was since the bill had been disposed of by the planning commission in April. The planning director had expressed surprise that it hadn’t gotten to Bynum and said he had forwarded it the council at the time.

Bynum complained that this left him with only a day to review the voluminous materials rather than five weeks, saying that this kind of thing was a common occurrence.

Furfaro offered an explanation in saying that legislation is supposed to be “managed” by the appropriate committee chair according to council rules and took responsibility for withholding the material.

He said he had received the bill and materials as planning committee chair and claimed that to forward them to all councilmembers would put him in jeopardy of violating the prohibition on “serial one-on-one” communications, referring to a recent letter from the OIP that had admonished him for violating serial one-on-one prohibitions.

He noted that the Earth Justice organization had pointed out some “conflicts” in the law and that might have accounted for the delay, waving a letter to the planning department he planned to send asking about those changes.

Though he did not say what the letter specifically referred to, PNN filed a complaint with the OIP in December regarding a serial one-on-one communication accusing Furfaro of violating that provisions of the Sunshine Law.

But it didn’t end there. When the routine quarterly report from the Kaua`i Humane Society came up on the agenda Bynum again compained that although it was received by the clerk on May 27 he had just gotten it last week, noting that this time it had nothing to do with “managing legislation”.

Bynum noted that these were only examples and that there are literally dozens of communications addressed to him every week that he never receives.

That spurred the only remark made by rookie Councilperson Kawakami who said Nakamura’s actions were “ok with me”.

“The last thing I want is to be overwhelmed with communications” he said thanking the clerk for screening and limiting his interactions with his constituents.

Asing then exploded at Bynum saying that “this is the first time in 26 years” that any councilmember had complained about any of the rules or the process and that Bynum seemed to “have all sorts of complaints.

Asing routinely protested council policy and rules when he was a dissident early in his political career when he was on the losing end of many 6-1 votes and as have other councilmembers over the years.

It was at that point that county Attorney put a halt to the discussion saying that "subtle allegations against the county clerk (are) an employment matter” and should only be discussed in executive session.

EVERYBODY’S BITCH

EVERYBODY’S BITCH: To whore or not to whore- that is the question every “blogger” faces, whether of the journalistic or social networking type.

Last week Honolulu Advertiser blogger and former Star-Bulletin Editor Dave Shapiro set off a turd-storm describing how he

read in the Pacific Business News how a bunch of bloggers and social media types from the Mainland were here on a free Hawai`i vacation compliments of the Hawai`i Tourism Authority.

I don't have the marketing expertise to say whether the $15,000 paid by HTA on the So Much More Hawai`i junkets was worthwhile in terms of attracting visitors to Hawai`i.

But the new media folks accepting the freebies were a throwback to the bad old days of journalism when favorable coverage was for sale at the right price

Well after Dave referred them to the Society of Professional Journalists Ethics Code which forbids “freebies” for travel writers (and other “reviewers) because of the obvious conflict of interest, many of the blogger/whores- who were acting as journalists but were really just PR hacks masquerading as reporters- got wind of the post and tried to defend themselves.

After the denials by some that “I’m not a journalists- I’m just a blogger”- despite the fact that they are doing exactly what a reporter does- their reactions were, like any child caught with their hand in the cookie jar, expected and priceless in defending their actions with either “but everyone else is doing it” or “well, really I didn’t take THAT much money/freebie”.

But those who “blog” and also try to maintain actual journalistic principles face the same dilemma facing newspapers these days- how to financially support their efforts and still maintain those ethical standards.

Some may solicit donations like Disappeared News’ Larry Geller. But many others like Ian Lind have turned to advertising which is all too easy with “googleads” and “doubleclick” offering cash-for-eyeballs, even if it is at a rate of pennies a click.

Today Ian- and the rest of us- got a lesson on the pitfalls of “signing up” to allow ads to appear with his posts.

Ian, a former investigative reporter for the Honolulu Star-Bulletin, usually provides comments and added content on local stories and provides links to interesting web sites and posts, all interspersed with original reporting.

But today he presented arguably the best piece of investigative journalism in the state this year with under the professionally crafted headline Door-to-door security sales ringing consumer alarms.

It details an apparent scam happening on O`ahu involving Mormon students on summer vacation who are parlaying their door-to-door skills gained in “missionary” work into selling fly-by-night, long-term contacts for “free” home security systems.

The problem is that when you click through to the stand-along page for Lind's article, right across the top, googleads/doubleclick has pasted a click-on ad reading

Need and Alarm system?
Let Buyerzone Save You Time and Money
Compare Alarm System Price Quotes and Save

And of course when you click it on you see

Buyer Zone- used by over 4 million buyers
Compare Free Quotes- Let us save you time and money in 5 minutes- Take our Survey
Or....Search our Directory of Monitored Alarm System Companies

Of course when you “search” there is only one company to “compare” - ADT Monitored Alarm Systems”, a “reputable” company with many years in the business.

Lind has no control over which ad google will post with which article, but of course google is well known for automating a process where their ads correlate with the content- as anyone who uses gmail knows all too well

The problem is that to anyone who doesn’t know how google works or doesn’t put it together with the ad on Ian’s site, it makes what is an extraordinary piece of investigative work onto one that raises questions about the integrity of the author by making it appear Lind is just running down the competition for his “paid” masters.

No reputable newspaper runs ads based on content- note the word “reputable” since it seems to happen more and more these days. And certainly they would never be so gauche as to put the ad at the top of a page that contains an article on a related subject. And that goes double for on-line ads... if they have the ability to control it.

While on-line ad revenue for news providers will seemingly be minimal for the foreseeable future. if the google-style information gobbling and regurgitation advertising model is the future of newspaper reporting, those getting freebies on tourism marketing junkets may be the least of the ethical problems for the “news business”.

A DAY AT THE RACES

A DAY AT THE RACES: Tomorrow is the first full council meeting since the June 3 dust up and it’s anyone’s guess how the melodramas will play out.

(Cue organ music) When we last left our intrepid heroes Tim Bynum and Lani Kawahara they had been thwarted by the three evil geniuses, Drs. Asing, Nakamura and Castillo, in their attempt to bring sunshine and democracy to the Separate Kingdom.

Make no mistake about it. If Councilpersons Tim Bynum efforts to open the council’s agenda processes and bring sunshine to pubic documents – as PNN has described throughout last week or so- are to have fruitful results they must continue to challenge Chair Kaipo Asing’s despotism

The ball is in the dissidents’ court. The status quo is what it always was. If past is prologue Office Of Information Practices (OIP) and even court challenges could take months or even years during which time councilmembers’ measures will not find their way onto the council agenda and documents will linger in the darkest recesses of the Historic county Building.

On Kaua`i stonewalling silence and “doing what’s wrong as long as they can” has a long tradition. And no one expects that to suddenly change.

While we don’t know what (or even if) Bynum will do tomorrow, we do know what needs to happen for this challenge to entrenched power to succeed.

There are two different avenues that Bynum- and in fact members of the public- can take to force a discussion of his rule change to clarify that all councilmembers have the right, under council rules, to place bills, resolutions and other matters on the council’s agenda.

The first is to repeat the attempt he made at the June 3 to amend the agenda when the subject of “the agenda” comes up at the beginning of the meeting.

Last time Bynum was unprepared for the legal mumbo jumbo that county Attorney Al Castillo used to block the introduction, discussion and vote upon whether or not to add the matter to the agenda.

HRS §92-7(a) says that “(t)he board shall give written public notice of any.. meeting when anticipated in advance... at least six calendar days before the meeting.

But HRS §92-7(d) anticipates there being situations where the agenda may be amended at the time of the meeting “by adding items thereto with.. a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons”.

Castillo and Asing focused on the “reasonably major importance and action thereon by the board will affect a significant number of persons” section. They argued that even just the discussion of any matter to be added the council would violate the sunshine law.

Though Bynum was armed with an OIP opinion saying the matter could be added to agenda no one anticipated that Castillo and Asing would try to block even the introduction, discussion and vote to add it to the agenda.

By anticipating additions being made and making it conditional, the Sunshine Law, like all others, anticipates that the introduction, discussion and decision is to be made through the normal due deliberatory processes of the council.

If Castillo’s argument- that introduction, deliberation and decision-making would itself violate the Sunshine Law- were valid, nothing could ever be added to the agenda at a meeting whether it meets the two conditions or not because the due deliberation and decision by the council could never take place.

It’s a basic tenet of American jurisprudence that if a law anticipates something occurring, it must be interpreted so as to make that occurrence possible. In large part the case law goes back about as far as one can go, all the way to 1803’s US Supreme Court “Marbury vs. Madison” decision which basically says you can’t have administrative policies that invalidate the law.

It clearly cannot be a Sunshine Law violation to introduce, discuss and vote upon adding a matter to the agenda since the law itself describes the process to do so and the three thresholds the council must meet in order to add something (the third being the 2/3 vote).

The second “opening” for Bynum and even the public to speak on the matter is the presence on the agenda of the approval of the minutes of the June 3 meeting.

As PNN reported last week the OIP has opened up an investigation to determine whether the minutes of the executive session held at the meeting should be made public.

HRS §92-9(b) states that “minutes of executive meetings may be withheld (only) so long as their publication would defeat the lawful purpose of the executive meeting, but no longer”.

The purported lawful purpose Castillo stated was that the matter was not on that meeting’s agenda. But that day’s meeting is over so the condition can no longer be defeated and the council can- and should- vote to release those minutes or at least have a discussion and hold a vote on whether to do so.

We can’t say what Bynum will do tomorrow. Nor can we say if any members of the public will step forward and make these points when these matter come up on the agenda. But if Bynum doesn’t act perhaps the people will.

Members of the public have two, three-minute segments to speak on each agenda item and if they want to speak on either of these they had better be there before 9 a.m. since the first matter on the agenda after the roll call is “approval of the agenda” which is a condition precedent to holding the meeting.

That’s followed by the “approval of the minutes” although minutes approval is something that can be “moved to the end of the agenda”- a tool often used by Asing to delay discussion of controversial matters until interested people are either out of the room or get tired of waiting and go home.

(Cue organ music) Will our heroes accept the status quo and simply lick their wounds? Or will Bynum continue to strike while the iron is hot and the issue is fresh and clear in the minds of the outraged Kaua`i citizenry?

Will the evil genius’ once again thwart our dynamic duo? Or will Bynum and Kawahara’s clear thinking, honesty and penchant for democracy and rule of law, rule the day?

Will Dickie Chang and Derek Kawakami do the bidding of their new masters and establish themselves as political climbers and the latest members of the good ol’ boys club? Or will they support the torch and pitchfork bearing masses and join the side of goodness and sunshine... or will they even just be forced to vote on the matter and show their hand?

Join us again tomorrow in the Minotaur’s Labyrinth for another episode of... “All My Cronies”.

ON AND ON, ON AND ON, ON AND ON

ON AND ON, ON AND ON, ON AND ON: It’s been ten days of conflicting thoughts and emotions with the explosion of public interest in a subject that is anything but revelatory to us or our gw?/PNN subscribers and readers.

After a year and a half of exposes and detailed coverage of the secrecy and corrupt machinations of Council Chair Kaipo Asing and his henchmen, through the forced courage of one man the island suddenly sees their emperor has been nakedly rigging the process.

We feel like we owe Councilperson Tim Bynum an apology for some of the things we’ve written in the past, not just questioning the luminosity and focus of his cerebral candlepower but more importantly his integrity in acquiescing to Asing’s dictatorial hold on the council.

Who knew that he was apparently biding his time and going to eventually expose what we’ve been saying and he now admits has seen Asing’s active efforts to treat everyone like mushrooms- keeping us in the dark and bury us in bullsh-t.

Despite the outward signs that Bynum was occasionally frustrated as his first term went by, rather than take on any kind of adversarial role he showed the same inclination that other formerly idealistic new councilpersons had displayed- allowing their “respect” for Asing to squelch and stifle any penchant for reform.

We’ve wondered for years what it would take to pull back the veil for the general apathetic and uninvolved Kaua`i populace. Who knew that it would be Asing himself that would- or could- go a step too far in denying the basic tenets of democracy and violating the rule of law... and that some of his actions would be the straw that broke the camel’s back for Bynum.

Surely one factor in Bynum’s conversion- and one without which it never would have happened- was the election of Lani Kawahara who similarly could have spent years building up the courage of her convictions had Bynum not been through the same thing and poised to act.

How all this will play out is anyone’s guess. A courtroom is looking more and more like the place where the ability of councilpersons to place items on the agenda will be decided.

One local attorney, citing Marbury v. Madison- the 1803 Supreme Court decision establishing the “rule of law”-, wrote this morning in an email that “(i)f Tim Bynum sues, Tim should win”.

Another professional asked where people could contribute to a “democracy defense fund” as it were, to finance the case.

But with all the ire being directed at Asing what seems to escape many is that Asing’s hold on power is in the hands of the other four councilpersons.

If supporters of recently elected Councilmembers Dickie Chang and Derek Kawakami let them know their support of Asing could jeopardize their nascent political careers- something that both care deeply and apparently excursively about- as unlikely as it may seem the political pressure could cause them to vote to save their own necks.

It doubtful that either Jay Furfaro or Darryl Kaneshiro will buck Asing. Both are as paternalistic as Asing.

But even now, with their stress on the agenda availability and access to public documents Bynum and Kawahara makes one wonder what would happen if suddenly Asing, seeking to cut his losses, just gives up control of these two matters to run away and fight another day.

Though important and shockingly manipulative these matter are merely the tip of the iceberg and only symptomatic of the deeply seated corruption of process Asing and the rest of the council has traditionally promulgated and perpetuated.

Will the two dissidents stop voting with the majority to go into executive session at the drop of a hat, as they have despite reservations? Will they refuse to confirm conflicted board and commission appointees? Will they hold the administration’s feet to the fire when incompetence and corruption are exposed as they have been time and again, not just in this space but on the council floor.

We certainly hope they get the power to add items to the agenda and post public documents on-line. But the list of needed reform legislation is long and implantation will be arduous. Our county code and administrative rules are lettered with outdated ordinances that were written to protect the island’s power elite. And our charter is countermanded in many provisions.

The Ethics Board- which is appointed by the council- is itself the most corrupt and lawless of all county entities and the code of ethics ordinance is littered with illegal provisions. The Planning Commission is a rubber stamp of dumb growth and the director is so entranced he has convinced the commissioners that they work for him when the charter says the opposite. The well documented rampant corruption in the Personnel Department is in many ways encoded in county ordinances that permit patronage that would put Chicago to shame. The Access and Open Space Commission is forbidden by ordinance from even discussing re-establishing beach and mountain access.

And the Public Works Department is, as it has been for decades, as crooked as a hundred year old `Ohia tree with a cash-greased revolving door system that is all but detailed in printed in wall-hanging notices.

The people just approved a new county auditor and other reforms this past fall but the council has voted unanimously to meet in secret to discuss the implementation legislation for that, the general plan enforcement charter amendment and other reforms.

It’s not a stretch to think that those sessions are all about figuring out ways to negate the effects people expected when they ratified them.

We could go on and on but you get the idea.

If Bynum and Kawahara succeed in effectuating the three goals listed at kauaiinfo.org will they and everyone who is currently up in arms be happy and go back to sleep?

Sources close to the two have described to us the trepidation that Bynum and Kawahara had in “going public” with the situation. Would the public understand? Was it too “inside baseball” as they say? Would they simply be crushed?

Or would people rally to their side and appreciate the courage it took to go public with their frustrations and not just “go along to get along” and become one of the old boys and girls as the years go by.

Many other “reformers” have done as much over the years when Asing and his cronies corner them and subvert them as happened most recently with Mel Rapozo.

We obviously misunderestimated Bynum and are glad to have been wrong in our assessment of his courage and intellect. Though we weren’t “shocked-shocked to find gambling” we do hope that “this is the beginning of a beautiful friendship”.

DARKNESS, DARKNESS

DARKNESS, DARKNESS: To no one’s surprise the matter of amending council rules to force Chair Kaipo Asing to allow all councilmembers to place matters on the agenda is not on this week’s council agenda, filed yesterday for a rare Tuesday meeting next week.

The complete “packet” containing all the paperwork for the agendaed communications, bills, claims, legal matters, public hearings, executive sessions and committee reports for the meeting are set to be posted by Councilperson Tim Bynum on Friday at his and Councilperson Lani Kawahara’s kauaiinfo.org web site where a new essay on their efforts appears on the main page today.

The piece details three goals:
Goal # 1 - Allow all Councilmembers to place items on the Council agenda for consideration.
Goal # 2 - Make key public documents readily available to the public on the County's web site.
Goal # 3 - Circulate Council Service documents equitably to all Councilmembers in a timely manner.

Bynum and Kawahara are set to appear on community radio KKCR-FM this afternoon at 4 p.m. to discuss their efforts.

One matter that may not be clear to many is the “Catch-22” nature of the dilemma that Bynum faced when he tried to place consideration of the rules on the agenda at the June 3 meeting if letters to the editor in today’s local newspaper are any indication.

As a letter by council watchdog Glenn Mickens points out there are only two ways that a matter can be placed on the council’s agenda. One is to get it “initialed” by the chair and have it duly posted six days before the meeting.

The other is to move to amend the agenda when it is up for approval at the meeting itself.

According to the state sunshine law, nothing maybe added to the posted agenda if it is “of reasonably major importance” and “action thereon by the board will affect a significant number of persons”.

Though it is not clear in the law who is to determine whether those conditions are met. The law is clear that nothing may be discussed unless it is on the agenda. So at the meeting when Chair Asing and County Attorney Al Castillo declared that those conditions were met, in doing so they claimed that it precluded even a discussion of the matter.

This would seem to be a flaw in the law but what is clear is that the Office of Information Practices (OIP) is the entity that is charged with making determinations with regard to the Sunshine law.

At Bynum’s behest they had reviewed the proposed rule change and ruled it was ok to add it on the day of the meeting but even that was ruled by Castillo to be a taboo subject for discussion.

The problem is that it raises the question of how any matter could be ever added to the agenda if even the discussion of whether to add the matter cannot take place, much less a council vote on the matter.

The catch-22 is simply that a matter cannot be placed on the posted agenda without the chair’s “initials” but the chair also apparently can block discussion of an addition on the day of the meeting by claiming the sunshine law forbids discussion of non-agendaed items.

It became even more obvious there are still many who don’t know or understand what happened at the meeting when a letter by Alfred Laureta appeared suggesting that there was a simple solution.

Lauretta wrote:

A councilperson who wants to bring a serious matter to the attention of the council for serious consideration and action has a vehicle available to him/her. This is called a “motion” which, if duly “seconded,” is discussed and voted upon. A motion lacking a second is denied discussion or dies for want of a majority vote.

Parliamentary rules are available also to prevent or shorten discussion which involve matters not of substance or material to the issue and which so often, on televised sessions of the council, becomes political in nature.

I suggest that the Guest Viewpoint authors sponsor motions on the council floor of the next council meeting that will appropriately correct the situation they complain about. Will rule changes involve constitutional, charter, legal considerations? Or simple majority vote?

If they succeed in their motions, it is true that Kaipo is a “dictator.” If not...?

As PNN readers know from our reports of the events of June 3, Bynum did indeed make that motion to place the matter on the agenda and it was seconded by Kawahara.

Since the attempt and motion was made and seconded only to be thwarted in an apparently unlawful manner (council rules require that Robert’s Rules are to be used unless otherwise stated), it would seem that Lauretta, a retired Kaua`i 5th Circuit Court judge and known ally of Asing’s, would agree with the “dictator” tag Asing has earned.

One more thought that came up today when we received an email from someone seeking information on how to go through the required filings to release the minutes of the executive session on June 3.

In Section 92-9(b) the Sunshine Law states that

minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer.

The lawful purpose was purportedly to determine whether the matter could be placed on that meeting’s agenda. Since that meeting is over the lawful purpose can no longer be defeated so the condition no longer exists and the minutes should be made public immediately.

DON’T LET GO, DON’T LET GO:

DON’T LET GO, DON’T LET GO: Kaua`i has never been a hotbed of citizen participation when it comes to local government.

Even among the activist “usual suspects” most prefer to glom onto political issues that are state or even national in nature and if county government is involved they enter with a sense of helplessness as if approaching, if at all, an amorphous phagocyte ready to gobble them up dare they approach the monolithic blob.

Those of us who dare enter the labyrinth of the Minotaurs are steeled against its tentacles and though outrage is the coin of our realm it’s never a sure bet that our indignation will translate to community-wide ire.

How else do you explain why it took two years for Councilperson Tim Bynum to go public with the fact that councilmembers are not permitted to introduce legislation without the approval of the paternalistic hierarchy?

How else do you explain that it took another Councilperson Lani Kawahara to expose the lack of availability of public documents?

The trepidation Bynum and Kawahara felt over the months over openly challenging the status quo and leading up to last Wednesday’s challenge was only overcome after a last ditch effort at an end run around the beast that ended in humiliation and defeat.

For some reason this stab at the heart of our representational form of government has seemingly lit a spark if the daily letters to the editor of the local newspaper- which are now posted at the kauaiinfo.org web site set up by Bynum and Kawahara- are any indication.

Today someone went a step further by anonymously posting an on-line petition - with 42 signatories as of press time- that reads:

We, the residents of Kaua`i, respectfully request County Council agenda time for public discussion on open government, including, but not limited to, proposals related to the following items:

1. Councilmember's access to the agenda;

2. The placement of public documents, including meeting minutes, on the County's website;

3. Equitable and timely circulation of council service documents;

4. General access to information by the public and Councilmembers.

But don’t expect the agenda for next Wednesday’s full council meeting to reflect public anger when it’s posted tomorrow- or any time in the near future, especially as long as the protestations are made from afar.

While it’s gratifying to see the outpouring of support for the two councilmembers who dared to speak up for the community it’s only a first step in reclaiming our local government.

Future steps must include focusing on the machinations of the power elite, learning their stonewalling and obfuscating ways and, especially, showing up when they meet and holding their feet to the fire on every item.

Beyond the issues Bynum and Kawahara have raised are issues involving the webcast and cablecasts of council meetings which could be sent out live at no extra cost with the flip of a switch. Others include demanding full descriptions of agenda items and a full reading of them at the meetings. Eventually we must demand to have live telephone and email testimony taken on all items as many jurisdictions across the country allow.

Even if this agenda-access issue is resolved favorably if people go back to sleep when it’s over and allow not just the council but the administration to twist and warp laws and rules to their own ends, we’ll have no one to blame but ourselves when the good guys on the council just give up- as many have done in the past- and “join ‘em” when they figure out the people won’t stand by their sides when they “fight ‘em”.

(PNN) OIP OPENS INVESTIGATION OF COUNCIL’S EXECUTIVE SESSION ON DENYING AGENDA ACCESS TO COUNCILMEMBERS.

OIP OPENS INVESTIGATION OF COUNCIL’S EXECUTIVE SESSION ON DENYING AGENDA ACCESS TO COUNCILMEMBERS.

(PNN) The state Office of Information Practices (OIP) has opened an investigation of the “unforeseen” executive session held at the June 3 meeting of the Kaua`i County Council.

As PNN reported last week, the un-agendaed secret meeting was held to discuss the attempt by Councilperson Tim Bynum to place an amendment to the council rules on the agenda for the purposes of clarifying the rule that states that Chair Kaipo Asing could not block councilmembers from introducing bills and resolutions, as Bynum alleges Asing has routinely done for at least two-and-a-half years.

Bynum has said and presented documentation showing how Asing has used an administrative rule provision requiring Asing “initial” agenda items to block introduction of measures.

A complaint filed by Kaua`i resident Brad Parsons on June 4 asks for an “investigation and enforcement actions by all means necessary” and cites both PNN’s report and one that appeared in the local paper.

Parsons asked that:

the OIP look into the appropriateness of the use of Executive Session during the events of Wed. June 3, 2009, by the Kaua`i County Council described in the above reports. I would also request that the OIP look at the all of the events and supporting documentation at Kauaiinfo.org to develop an effective case for broader action on these unacceptable matters inconsistent with "one man, one vote" standards of representative democracy.

In response OIP launched investigation S INVES-P 09-08 and on June 5 sent the following letter to Asing.

Dear Chair Asing,

The Office of Information Practices has received a complaint from Mr. Brad Parsons concerning the Kaua`i County Council (“the Council). Specifically Mr. Parsons asks whether the executive sessions held on June 3, 2009 violated part 1 of section 92 Hawai`i Revised Statutes (the Sunshine Law). A copy of Mr. Parson’s (sic) complaint is enclosed for your information.

We ask for your assistance in our review of this complaint. Please provide us with a detailed explanation. including any relevant legal citations setting forth the council’s position on this matter and any other information you deem relevant to this inquiry. We request that the council provide this response to the OIP no later than ten days from receipt of this letter.

Thank you for your attention to this matter. If you have any questions or would like to discuss this matter please do not hesitate to contact the undersigned attorney.

Very truly yours,
Jennifer Z. Brooks,
Staff Attorney.

To clarify our coverage of last Thursday, Bynum attempted to place the matter on the agenda by making a “motion to amend” when the matter of the agenda came up at the meeting. That motion was seconded by councilperson Lani Kawahara but the motion was apparently never voted upon by the council.

Instead County Clerk Peter Nakamura reminded Asing that the approval of the agenda was left pending due to a previous motion for approval and second.

The council’s vote to approve was apparently approval of the agenda, not the amendment even though according to rules of order the amendment should have taken precedence.

According to the Sunshine Law and previous OIP rulings “unanticipated” matters that come up during a council meeting may be heard in executive sessions but that is only for items that are actually on the agenda.

Each council agenda contains a caveat saying

(p)ursuant to Haw. Rev. Stat. (“H.R.S.”) §92-7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance.

As to adding a matter to the agenda the Sunshine Law reads

No board shall change the agenda, once filed, by adding items thereto without a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.

It should be noted that both conditions must be present for the matter to be rejected as an addition to the agenda. Since the current rules call for all councilmembers to be able to add items to the agenda it is unknown how clarifying that council rule- a basic tenet of American republican representational government- would be of “either major importance” or “affect a significant number of persons”.

At the meeting county Attorney Al Castillo briefly maintained that both conditions were met he did not say how, saying only that “council rules are important” and “affect everyone on the island”.

He then repeatedly cut off discussion by of the matter councilmembers Bynum and Kawahara in public session and demanded an executive session, even though his role is advisory.

Those wishing to view the meeting this weekend were greeted by a blank screens on Ch. 53 of Ho`ike Community Television which is paid by the county to tape and cablecast the meetings.

Although PNN called Saturday to alert them to the situation and talked to an employee who said he would take care of the matter, the screen remained blank all weekend during a time when most people are known to watch the meetings, especially those that have been controversial.

Asing and County Clerk Nakamura are in charge of administering the council’s portion of the Ho`ike contract and determine which council sessions will be presented on Public access TV.

In the past OIP has ordered that minutes of executive sessions that were illegally held must be made public immediately. In one such ruling the county sued the OIP delaying release for two years.

Presuming the OIP letter to Asing that was sent Friday arrived yesterday (6/9) a response is due June 19.