REPORT: DAM DITCH INTAKE AND RETURN WATER TO MOLOA`A STREAM
(PNN) -- Moloa`a Stream's flow will be “restored to it’s natural state” if a consultant’s recommendation are followed, the county council was told Wednesday.
But although Moloa`a water activist Hope Kallai, who has pushed for the return of water to Moloa`a residents and farmers, was pleased, she also said not so fast there. She explained that the point of diversion is on conservation land and any effort at all would need permissions and permits to work on the current stream alteration that diverts river water into Moloa`a Ditch.
In addition, although Kallai did not mention it, water course alterations also usually need federal permits.
In a presentation of the final draft of the “Kilauea Irrigation Water Engineering Monitoring Study”, Andy Hood of “Sustainable Resources Group International Inc.” told council members that the water that flows into the Ka Loko Ditch system from the Kalua`a tributary of Moloa`a Stream is “not needed” to sustain agriculture in the area and “recommend(ed) at the point of diversion at Kalua`a stream, the intake to Moloa`a ditch be dammed up and restored to its natural state”.
Hood said that although “Moloa`a Ditch had never been registered to receive a stream works diversion permit nor was the ditch permitted” there was “nothing sinister” in that and there was “no malfeasance”. Rather he theorized that Brewer Inc, who owned the land prior to 1987, “just didn’t need the water” and the permitting “slipped through the cracks”.
He did not mention the part of the original draft report that says that the current condition of the intake dam was apparently the result of work done only about 10 ago, as PNN reported in its series on the Moloa`a Water theft (see left “rail” for links to prior reports).
Hood said that the Mary Lucas Trust (MLT)- which according to a 1987 “allocation” shares the water equally with the Kilauea Irrigation company (KICO) and owns land abutting Ka Loko Reservoir- has agreed to pay for restoring the flow to farmers and residents in Moloa`a Valley who say they have noticed a marked decrease in water flow and area wells ever since the late 90’s around the time the work was allegedly done.
According to that 1987 water rights agreement to serve the 105 acre “Kilauea Farms Subdivision” below the reservoir, KICO and MLT are to share the water “50-50”, Hood told the council.
But State Aquatic Resources Kaua`i Manager Don Heacock said that water rights nowadays are subject to the “pubic trust doctrine”- as established in the Wai`ahole Ditch Hawai`i Supreme Court decision- and should be allocated based on need and use by the “State Commission of Water Resources”.
Hood said that he could not determine use by KICO because it’s owner Thomas Hitch has seemingly disappeared and the current users claim “proprietary information” that “their competitors” would like to get their hands on a survey of the users done for the study drew few responses.
In addition due to the massive and complicated litigation surrounding the March 2006 Ka Loko dam break tragedy that killed seven people downstream, no one wants to talk about anything although he said much of the report would not have been possible without the discovery” process as a result of the suits.
He also said MLT only uses the water they receive to support around a hundred head of cattle.
One discrepancy as stated by Hood is that MLT receives water through a pipe that takes water from the Ka Loko ditch way up valley but also shares a 50-50 use arrangement just above the reservoir implying that MLT may be receiving much more than 50% despite their limited need.
In a power point presentation cut short by the enforcement of the council’s “three minutes” rules, Kallai presented documents showing that prior to the ’87 agreement both the county council in 1979 and the Water Department subsequently, had designs on the water. The council wanted to supply planned “diversified agriculture” in the entire Kilauea area from Kalihiwai to Moloa`a and the Department wanted some for potable water.
As to whether there is sufficient water to serve the Kilauea Farms subdivision- which was the actual subject of the $75,000 study initiated by Councilmembers Jay Furfaro and Darryl Kaneshiro- the answer is “just barely” under the current arrangement and condition of Ka Loko reservoir.
Hood provided a few options for increasing the flow including a limited repair of the breach at the bottom of the reservoir where overflow currently runs down valley into the ocean when the three big pipes that remove the water for irrigation are fully supplied.
Kallai claimed that the overflow is a huge mess that was never investigated by the EPA, and never cleaned up making the damage downstream and to the reef and ocean something that would “make Pila`a look manini.”
Some councilmembers wanted to know if and how the system might serve the entire Kilauea area since it is just barely sufficient in its current state to serve the Kilauea Farms Subdivision. But it was determined that historically there were other components of the entire Kilauea Sugar Company operations irrigation system, including the Kalihiwai reservoir which originally served some lands in that area until sugar production was shut down in the early 70’s.
That area would include the new Kilauea Agricultural Park that the county has recently obtained after a 30 year battle to acquire and set it up. Present plans are to use the potable county water system for the farm rather than a the old gravity driven cane ditch system.
The council discussed briefly whether funding a wider study to get a comprehensive idea of the water resources and needs- and current flows which were not in the report aside from some guesswork on the Ka Loko system- but Heacock recommended contacting the state Department of Land and Natural Resources (DLNR), the federal Department of Agriculture’s National Resources Conservation Service and the US Geologic Service in Honolulu to get them to coordinate and possibly fund the study since it was essentially their kuleana.
Heacock said that there are actually 26 streams that feed Ka Loko system, something Hood intimated when saying that the flow intake at the head end of the Ka Loko system was less than the amount flowing at the end, guessing that there were areas where streams fed the ditch at lower elevation although his staff did not observe them.
And of course that net gain includes the previously mentioned “pipe” at higher elevations that removes water for MLT’s cows
Heacock said there needs to be a full disclosure on “what’s being serviced- what crops are being grown” implying that some farms’ claim to “proprietary information” was not going to get them water if the “public trust” involved in water rights is enforced.
Kallai was denied permission by Economic Development and Housing Committee Chair Dickie Chang to use the testimony time of the roomful of KNA members present and was cut off without being able to finish her whole presentation which included documents not in the county report, many from a 1984 federal study of ag in the Kilauea area and water usage stakeholders at that time that were excluded in the ’87 agreement between KICO and MLT.
But as she was being given the bums rush she did mange to blurt out that the intake was on state conservation land and therefore no activity may take place without the DLNR’s permission and no changes to water flow may be effectuated without the OK of the DLNR’s “Commission of Water Resources” which determine water usage based on the Wai`ahole pubic trust doctrine.
Despite the testimony by Hood regarding Moloa`a Ditch, previous to and in anticipation of Kallai’s testimony Councilperson Darryl Kaneshiro and Council Chair Kaipo Asing attempted to limit her testimony because the specific subject of Moloa`a Ditch wasn’t on the council’s official agenda. But councilperson Jay Furfaro countered that under the state sunshine law the public was permitted to speak “off agenda” at the discretion of Committee Chair Chang.
The 155 page PDF file of the report is available on-line. It was funded through the county’s Office of Economic Development.
Friday, June 26, 2009
Thursday, June 25, 2009
TROT VS. GALLOP
TROT VS. GALLOP: We spent the morning playing catch-up, watching last week’s “county manager forum” and were expecting a good presentation from David Mora, the West Coast regional director of the International City/County Management Association and probably a bunch of ill-informed clueless questions from the attendees.
While Mora didn’t disappoint, nothing could be farther from the truth on the latter point.
Anyone who cares about the future of county governance would be behooved to give it a gander or fire up the VCR tomorrow morning (Friday) at 8:08 a.m. and hopefully continuing over the weekend on Ho`ike Channel 53.
The questions asked revealed the breadth and depth of the project and made it apparent that there are myriad considerations that need to go into any new system.
One thing became clear about what Mora insisted we call the “Council/County Manager (C-CM)” system- there are as many ways to set up a system as there are jurisdictions and virtually no two are the same. Each reflects the needs of the community, compliance with the existing state constitution and laws and especially political history and culture of the area.
Other than saying he made clear that the position of mayor never disappears under a C-CM scheme we won’t go into all the devilish details but one thing is clear- if the particulars of the system we choose isn’t appropriate there will be the devil to pay.
That means that having the existing three person sub-committee of the Charter Review Commission meet once a month in untelevised thus practical anonymity and come up with a fully fleshed out and vetted proposal may be impossible and certainly is not appropriate for a plan of this magnitude.
Such a change would be many times more important to the people of Kaua`i than our General Plan (GP) Updates, another of which is due to begin after the next election.
Writing any “new charter”- which is what it will take to implement a C-CM plan- must be subject to the same level of public education, input and scrutiny as the GP updates including a citizen’s advisory panel, island-roving, televised meetings and all the public input possible.
If we don’t do that we are likely to produce a document that doesn’t reflect the needs and wants of a consensus of the people and guarantee that all that work will be for nil when people are asked to institute a new system of government that they don’t understand or particularly want with all the details being released next summer fully formed, each giving someone a reason to vote against it.
As we all know when asked to pass a ballot measure we don’t understand or aren’t sure we like, people will vote no.
If we go through all this and it is shot down it will be the death of any chance for a re-write of our charter to reflect the distance we’ve traveled since the current charter was written in the mid 60’s to reflect a plantation economy and society.
We ask the proponents of the C-CM system to slow down and instead of insisting we rush head-long into a potential flawed document without a community buy-in. We urge them to consider allowing the subcommittee to recommend a process similar to the one employed to come up with a GP, which is usually a two year process.
We owe it to ourselves to make this work and if it’s going to work, there’s plenty of work to do.
While Mora didn’t disappoint, nothing could be farther from the truth on the latter point.
Anyone who cares about the future of county governance would be behooved to give it a gander or fire up the VCR tomorrow morning (Friday) at 8:08 a.m. and hopefully continuing over the weekend on Ho`ike Channel 53.
The questions asked revealed the breadth and depth of the project and made it apparent that there are myriad considerations that need to go into any new system.
One thing became clear about what Mora insisted we call the “Council/County Manager (C-CM)” system- there are as many ways to set up a system as there are jurisdictions and virtually no two are the same. Each reflects the needs of the community, compliance with the existing state constitution and laws and especially political history and culture of the area.
Other than saying he made clear that the position of mayor never disappears under a C-CM scheme we won’t go into all the devilish details but one thing is clear- if the particulars of the system we choose isn’t appropriate there will be the devil to pay.
That means that having the existing three person sub-committee of the Charter Review Commission meet once a month in untelevised thus practical anonymity and come up with a fully fleshed out and vetted proposal may be impossible and certainly is not appropriate for a plan of this magnitude.
Such a change would be many times more important to the people of Kaua`i than our General Plan (GP) Updates, another of which is due to begin after the next election.
Writing any “new charter”- which is what it will take to implement a C-CM plan- must be subject to the same level of public education, input and scrutiny as the GP updates including a citizen’s advisory panel, island-roving, televised meetings and all the public input possible.
If we don’t do that we are likely to produce a document that doesn’t reflect the needs and wants of a consensus of the people and guarantee that all that work will be for nil when people are asked to institute a new system of government that they don’t understand or particularly want with all the details being released next summer fully formed, each giving someone a reason to vote against it.
As we all know when asked to pass a ballot measure we don’t understand or aren’t sure we like, people will vote no.
If we go through all this and it is shot down it will be the death of any chance for a re-write of our charter to reflect the distance we’ve traveled since the current charter was written in the mid 60’s to reflect a plantation economy and society.
We ask the proponents of the C-CM system to slow down and instead of insisting we rush head-long into a potential flawed document without a community buy-in. We urge them to consider allowing the subcommittee to recommend a process similar to the one employed to come up with a GP, which is usually a two year process.
We owe it to ourselves to make this work and if it’s going to work, there’s plenty of work to do.
Wednesday, June 24, 2009
THAT DOG NEVER DID HUNT
THAT DOG NEVER DID HUNT: The Superferry is making headlines again today but as Joan Conrow pointed out this morning, the Honolulu Advertiser’s story missed the mark in reporting that “Hawaii Superferry wants to abandon both its catamarans when the real story, as reported in the Mobile (AL) Press Register (P-R), is that it was anything but about what Hawai`i Superferry (HSf) Inc. wanted to do but rather about the fact that the “Government (is) to repossess Hawaii Superferry”
One things that stands out is a discrepancy between how much of their “investment” in the project HSf maker Austal is eating on the deal, with the Advertiser reporting the figure at $29.9 million and the P-R saying it is only 11 of that 29 million that they will “write off”.
As Joan points out a key passage in the P-R article- at least for those of us who have seen through all the gorilla dust and spin and seen how the project was always about demonstrating the aluminum catamaran design of Austal’s so that they could get the huge military contract they have now signed- says:
Browning said that Austal approved lending $23 million to the ferry venture in part because the deal would help raise the profile of Austal's U.S. shipyard, which at the time had been operating in Mobile for only a few years. Although it succeeded in doing that — the Mobile shipyard in November won a potential $1.6 billion contract to build up to 10 high-speed fast ferries for the military — Browning said the company's lending days are over.
But another couple of passages in the P-R article were, well, pretty outrageous, the first saying
Talks among MARAD, Austal and Hawaii Superferry broke down last week, Austal officials said....
Austal Ltd. President Bob Browning said he was disappointed that MARAD decided to seize the ferries without involving Austal in a project to prepare them for military use.
Maybe Austal is “disappointed” but that is certainly good news for HSf- it seems that the “taxpayer guarantee” is now being “activated” which lets the owners off the hook for trying to find work for the apparently unwanted ferry, as evidenced by the lack of interest thus far in leasing the vessels even to the military.
But the bombshell in this, if true, might just be this sentence:
MARAD made the ferry loans under its Title XI program, which is supposed to support U.S. shipyards by reducing their reliance on military work.
With what we know now about how the whole deal went down in order to have Austal positioned to do military work, the fact that MARAD- the U.S. Maritime Administration- made the loan to “support U.S. shipyards by reducing their reliance on military work” points to one conclusion- the whole deal was a fraud.
Austal has admitted as much by saying publicly and repeatedly that their “investment” was in order to prove the ferry’s seaworthiness so it could eventually rely on military work, while knowing full well of the thus-far-unreported “strings attached” to the MARAD loan.
And by fraud we don’t mean just some petty theft- we’re talking about defrauding the taxpayer out of $136.8 million.
If nothing else it goes a long way in explaining the constant, adamant denial of military involvement in the venture- for no good reason- in the face the mounting evidence, as first reported by Conrow.
It also raises the question of what the liability of former Naval Secretary John Lehman may be now that MARAD has stepped in. Funny how he personally seems to be getting away scot-free, at least financially, when it was his machinations that cost everyone big bucks, including the Hawai`i taxpayers who will probably never see the $40 million Harbor improvements Governor Linda Lingle’s “Unified command” was duped out of .
As a matter of fact, he may turn a profit since, as the Advertiser article reports:
The company has no current source of revenue yet has to cover the cost of insurance, maintenance, security, storage and a skeleton crew for the catamarans at an Alabama shipyard owned by J.F. Lehman & Co., the project's main private investor.
So Lehman gets off from any financial responsibility for the fiasco he created and is most likely collecting “maintenance storage, security, and (salaries for) a skeleton crew” now that MARAD has taken “possession” of the boats.
We’ll see what happens in bankruptcy court where proceedings are now taking place in Delaware although the state is trying to move them to Hawai`i. But due to the insane bankruptcy laws that allow fat cats to form “limited liability” companies and duck out of obligations through bankruptcy yet stick working class credit card and home debtors with paying back every penny, don’t expect Lehman to be crying all the way to the bank.
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Correction:
Yesterday we said that Councilman Darryl Kaneshiro served in the Eduardo Malapit administration as Mala’s “Administrative Assistant”, a second-in-command “assistant mayor” position as defined in the county charter.
Rather, Kaneshiro’s service was in the administration of Tony Kunimura where he served as economic development director and, apparently, as a generic administrative aide. We regret the error.
One things that stands out is a discrepancy between how much of their “investment” in the project HSf maker Austal is eating on the deal, with the Advertiser reporting the figure at $29.9 million and the P-R saying it is only 11 of that 29 million that they will “write off”.
As Joan points out a key passage in the P-R article- at least for those of us who have seen through all the gorilla dust and spin and seen how the project was always about demonstrating the aluminum catamaran design of Austal’s so that they could get the huge military contract they have now signed- says:
Browning said that Austal approved lending $23 million to the ferry venture in part because the deal would help raise the profile of Austal's U.S. shipyard, which at the time had been operating in Mobile for only a few years. Although it succeeded in doing that — the Mobile shipyard in November won a potential $1.6 billion contract to build up to 10 high-speed fast ferries for the military — Browning said the company's lending days are over.
But another couple of passages in the P-R article were, well, pretty outrageous, the first saying
Talks among MARAD, Austal and Hawaii Superferry broke down last week, Austal officials said....
Austal Ltd. President Bob Browning said he was disappointed that MARAD decided to seize the ferries without involving Austal in a project to prepare them for military use.
Maybe Austal is “disappointed” but that is certainly good news for HSf- it seems that the “taxpayer guarantee” is now being “activated” which lets the owners off the hook for trying to find work for the apparently unwanted ferry, as evidenced by the lack of interest thus far in leasing the vessels even to the military.
But the bombshell in this, if true, might just be this sentence:
MARAD made the ferry loans under its Title XI program, which is supposed to support U.S. shipyards by reducing their reliance on military work.
With what we know now about how the whole deal went down in order to have Austal positioned to do military work, the fact that MARAD- the U.S. Maritime Administration- made the loan to “support U.S. shipyards by reducing their reliance on military work” points to one conclusion- the whole deal was a fraud.
Austal has admitted as much by saying publicly and repeatedly that their “investment” was in order to prove the ferry’s seaworthiness so it could eventually rely on military work, while knowing full well of the thus-far-unreported “strings attached” to the MARAD loan.
And by fraud we don’t mean just some petty theft- we’re talking about defrauding the taxpayer out of $136.8 million.
If nothing else it goes a long way in explaining the constant, adamant denial of military involvement in the venture- for no good reason- in the face the mounting evidence, as first reported by Conrow.
It also raises the question of what the liability of former Naval Secretary John Lehman may be now that MARAD has stepped in. Funny how he personally seems to be getting away scot-free, at least financially, when it was his machinations that cost everyone big bucks, including the Hawai`i taxpayers who will probably never see the $40 million Harbor improvements Governor Linda Lingle’s “Unified command” was duped out of .
As a matter of fact, he may turn a profit since, as the Advertiser article reports:
The company has no current source of revenue yet has to cover the cost of insurance, maintenance, security, storage and a skeleton crew for the catamarans at an Alabama shipyard owned by J.F. Lehman & Co., the project's main private investor.
So Lehman gets off from any financial responsibility for the fiasco he created and is most likely collecting “maintenance storage, security, and (salaries for) a skeleton crew” now that MARAD has taken “possession” of the boats.
We’ll see what happens in bankruptcy court where proceedings are now taking place in Delaware although the state is trying to move them to Hawai`i. But due to the insane bankruptcy laws that allow fat cats to form “limited liability” companies and duck out of obligations through bankruptcy yet stick working class credit card and home debtors with paying back every penny, don’t expect Lehman to be crying all the way to the bank.
---------
Correction:
Yesterday we said that Councilman Darryl Kaneshiro served in the Eduardo Malapit administration as Mala’s “Administrative Assistant”, a second-in-command “assistant mayor” position as defined in the county charter.
Rather, Kaneshiro’s service was in the administration of Tony Kunimura where he served as economic development director and, apparently, as a generic administrative aide. We regret the error.
Tuesday, June 23, 2009
IT TAKES TWICE TWO BABY- AND BABY ONLY MAKES THREE
IT TAKES TWICE TWO BABY- AND BABY ONLY MAKES THREE: No one can accuse Councilperson Jay Furfaro of missing enough moist fingers to tell which way the political winds are blowing. So of course the fact that he beat a path to the door of the never-never land of the local newspaper to say “I'm a dissident too” should come as no surprise, especially to our readers who heard about his apparent 180 last week.
But inaccuracies like the mayor having a role in the selection of the county clerk aside (the council alone makes the choice), the article attempts to makes sure everyone in town now adds his name to the list of “good guys”, making for three votes where four is the magic number.
People may remember- and the article fails to note- that actually Furfaro ran for chair this year and garnered the votes of the original council dissidents Tim Bynum and Lani Kawahara, who have had the courage of their convictions as opposed to Furfaro who jumped on the bandwagon after wide-spread outrage in the community and a lack of support for Chair Kaipo Asing surfaced, even among many of Asing’s lock step supporters.
That may answer at least the first of the questions Joan Conrow asked today, wondering why:
Given Kaipo’s history, why did the Council vote to again make Kaipo chair? Why doesn’t the Council act now to remove him from that position? And why didn’t the Council move to change some of its rules when Kaipo was briefly dethroned and warming the seat at the mayor’s office? Surely they would have found an ally in former Councilwoman JoAnn Yukimura.
The first two being a matter of “doing the math”- and the math being a function of the political climbing of freshman Derrek Kawakami, the deer-in-the-headlights wits of the glad-handing Dickie Chang and the founding nature of Darryl Kaneshiro’s membership in the old boys club (he was Mayor Eduardo Malapit’s administrative assistant)- Kaipo will remain in power until either Derrek gets the message from voters or Dickie buys a pair (no, eyes).
But the third question begs a little recent history lesson.
In the article Furfaro touts how he tried to deal with the “secret county attorney opinions” quagmire created by Asing and former County Attorney Lani Nakazawa and continued by her successor Matthew Pyun.
In typical credit grabbing Furfaro style the article neglects to mention that it was Bynum who kept harping on the Star Chamber nature of the “we have an opinion that explains our actions but we can’t share it with you” machinations.
It was actually Bynum who challenged the policy over and over in open council session and was prepared to overturn it immediately.
While it was Furfaro who put it on the agenda while he was temporary chair in Asing’s absence last summer after Asing moved to the mayor’s slot when Bryan Baptiste died, it was also he who said they needed to wait to act until they had a “county-wide policy”- applying to boards and commissions too- for releasing the opinion, which of course the county attorney had to come up with- and still hasn’t to this day.
That was after he had adamantly agreed with Asing that there first must be a council policy enacted to release them, even though they had been routinely released for years before Asing’s reign as chair.
But that could have been done quickly as Bynum said he had prepared just such a policy, hence the requirement for a county-wide policy to further delay the seemingly not so inevitable.
That leads to the related statement in last sentence of Joan’s ponderings- “Surely they would have found an ally in former Councilwoman JoAnn Yukimura.”
Well Joan, surely you jest.
If there was one person who not just allowed but promulgated the secrecy of the Asing regime it was our dear JoAnn.
She used her status and abilities as an attorney to talk out of both sides of her mouth on this, claiming to support open governance but doing everything she could to perpetuate both the “secret county attorney opinions” and use of the executive session to hide embarrassing political decisions regarding public policy under the guise of “discussions with their attorney” matters of “potential, future litigation” arising from discussions of pending legislation- a warping of the sunshine law that was used just last week to discuss either implementing, or more likely fighting, the new citizen’s general plan enforcement charter amendment.
This all came to a head last summer during the bill to allow existing illegal transient vacation rentals in non visitor destination areas after threats to sue the county from Board of Realtors’ attorney Jonathan Chun “forced” her, as planning committee chair, to pass out a bill grandfathering anyone who had been violating state law for years, based on a convoluted county attorney opinion that had been released before the change was made to keep them secret.
(Actually the release of that opinion at the time was instrumental in the thinking of Yukimura that these opinions should not be released because the release of that opinion was cited by Chun as giving people reason to believe that their illegal activities were indeed legal.)
The Star Chamber-ish nature of the problem was that no one could question the legal basis for the grandfathering because it was all based on an unreleased newer county attorney’s opinion that was also another excuse to talk about public policy behind closed doors.
Although the article contains a lot of convoluted thinking and feigned ignorance by Furfaro- which we may go into at a later date- one particularly typifies Furfaro’s seeming need to be associated with the reformers while still helping construct roadblocks.
Trying to archive the past two years’ meeting minutes, as Bynum and Kawahara requested through a still unanswered UIPA request, would be tough to do logistically until then, Furfaro said. He noted additional concerns over what minutes should even be posted online, particularly executive session minutes.
First of all no one is asking to post executive session (ES) minutes although there is a move to get the council to release ES minutes that are required by law to be made public when the purpose of the ES would no longer be defeated by releasing them. The clerk’s office must segregate them now so the disingenuity of that is apparent.
The fact is that Bynum and Kawahara have already posted the minutes going back to February and are planning to complete the project whether their UIPA request is granted or not... and the ones that were posted were done in a short session of scanning and posting by Bynum.
The purpose of the UIPA request to avoid the scanning since the minutes exist in electronic form meaning that all it would take to post them is a few key board strokes, no scanning needed.
It’s typical of Furfaro’s style, probably learned at the feet of Yukimura, where lip service to open governance is negated by actions to set up roadblocks to accountability and transparency.
Can’t anyone here play this game?
As they (ok, we) say, the Minotaur can’t guard the labyrinth all alone and with dissidents like Furfaro, who needs sycophants?.
But inaccuracies like the mayor having a role in the selection of the county clerk aside (the council alone makes the choice), the article attempts to makes sure everyone in town now adds his name to the list of “good guys”, making for three votes where four is the magic number.
People may remember- and the article fails to note- that actually Furfaro ran for chair this year and garnered the votes of the original council dissidents Tim Bynum and Lani Kawahara, who have had the courage of their convictions as opposed to Furfaro who jumped on the bandwagon after wide-spread outrage in the community and a lack of support for Chair Kaipo Asing surfaced, even among many of Asing’s lock step supporters.
That may answer at least the first of the questions Joan Conrow asked today, wondering why:
Given Kaipo’s history, why did the Council vote to again make Kaipo chair? Why doesn’t the Council act now to remove him from that position? And why didn’t the Council move to change some of its rules when Kaipo was briefly dethroned and warming the seat at the mayor’s office? Surely they would have found an ally in former Councilwoman JoAnn Yukimura.
The first two being a matter of “doing the math”- and the math being a function of the political climbing of freshman Derrek Kawakami, the deer-in-the-headlights wits of the glad-handing Dickie Chang and the founding nature of Darryl Kaneshiro’s membership in the old boys club (he was Mayor Eduardo Malapit’s administrative assistant)- Kaipo will remain in power until either Derrek gets the message from voters or Dickie buys a pair (no, eyes).
But the third question begs a little recent history lesson.
In the article Furfaro touts how he tried to deal with the “secret county attorney opinions” quagmire created by Asing and former County Attorney Lani Nakazawa and continued by her successor Matthew Pyun.
In typical credit grabbing Furfaro style the article neglects to mention that it was Bynum who kept harping on the Star Chamber nature of the “we have an opinion that explains our actions but we can’t share it with you” machinations.
It was actually Bynum who challenged the policy over and over in open council session and was prepared to overturn it immediately.
While it was Furfaro who put it on the agenda while he was temporary chair in Asing’s absence last summer after Asing moved to the mayor’s slot when Bryan Baptiste died, it was also he who said they needed to wait to act until they had a “county-wide policy”- applying to boards and commissions too- for releasing the opinion, which of course the county attorney had to come up with- and still hasn’t to this day.
That was after he had adamantly agreed with Asing that there first must be a council policy enacted to release them, even though they had been routinely released for years before Asing’s reign as chair.
But that could have been done quickly as Bynum said he had prepared just such a policy, hence the requirement for a county-wide policy to further delay the seemingly not so inevitable.
That leads to the related statement in last sentence of Joan’s ponderings- “Surely they would have found an ally in former Councilwoman JoAnn Yukimura.”
Well Joan, surely you jest.
If there was one person who not just allowed but promulgated the secrecy of the Asing regime it was our dear JoAnn.
She used her status and abilities as an attorney to talk out of both sides of her mouth on this, claiming to support open governance but doing everything she could to perpetuate both the “secret county attorney opinions” and use of the executive session to hide embarrassing political decisions regarding public policy under the guise of “discussions with their attorney” matters of “potential, future litigation” arising from discussions of pending legislation- a warping of the sunshine law that was used just last week to discuss either implementing, or more likely fighting, the new citizen’s general plan enforcement charter amendment.
This all came to a head last summer during the bill to allow existing illegal transient vacation rentals in non visitor destination areas after threats to sue the county from Board of Realtors’ attorney Jonathan Chun “forced” her, as planning committee chair, to pass out a bill grandfathering anyone who had been violating state law for years, based on a convoluted county attorney opinion that had been released before the change was made to keep them secret.
(Actually the release of that opinion at the time was instrumental in the thinking of Yukimura that these opinions should not be released because the release of that opinion was cited by Chun as giving people reason to believe that their illegal activities were indeed legal.)
The Star Chamber-ish nature of the problem was that no one could question the legal basis for the grandfathering because it was all based on an unreleased newer county attorney’s opinion that was also another excuse to talk about public policy behind closed doors.
Although the article contains a lot of convoluted thinking and feigned ignorance by Furfaro- which we may go into at a later date- one particularly typifies Furfaro’s seeming need to be associated with the reformers while still helping construct roadblocks.
Trying to archive the past two years’ meeting minutes, as Bynum and Kawahara requested through a still unanswered UIPA request, would be tough to do logistically until then, Furfaro said. He noted additional concerns over what minutes should even be posted online, particularly executive session minutes.
First of all no one is asking to post executive session (ES) minutes although there is a move to get the council to release ES minutes that are required by law to be made public when the purpose of the ES would no longer be defeated by releasing them. The clerk’s office must segregate them now so the disingenuity of that is apparent.
The fact is that Bynum and Kawahara have already posted the minutes going back to February and are planning to complete the project whether their UIPA request is granted or not... and the ones that were posted were done in a short session of scanning and posting by Bynum.
The purpose of the UIPA request to avoid the scanning since the minutes exist in electronic form meaning that all it would take to post them is a few key board strokes, no scanning needed.
It’s typical of Furfaro’s style, probably learned at the feet of Yukimura, where lip service to open governance is negated by actions to set up roadblocks to accountability and transparency.
Can’t anyone here play this game?
As they (ok, we) say, the Minotaur can’t guard the labyrinth all alone and with dissidents like Furfaro, who needs sycophants?.
Monday, June 22, 2009
(PNN) COUNTY PUBLIC FINANCIAL DISCLOSURES TO BE PUBLICLY DISCLOSED
COUNTY PUBLIC FINANCIAL DISCLOSURES TO BE PUBLICLY DISCLOSED
(PNN)-- Public disclosure of financial information required by state law of certain county officials will now be subject to public review according to a letter to all board and commission members from Executive Assistant and Administrator of the Office of Boards and Commissions, John Isobe.
The Hawai`i State Constitution’s "Code of Ethics” Article XVI states that
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures.
That has apparently never been the case on Kaua`i where the Board of Ethics (BOE) has for decades routinely received the pubic disclosures in executive session where they have redacted whatever they consider to be sensitive and/or personal and financial information as defined in the Universal Information Practices Act’s (UIPA) section 92F-14(6).
As a matter of fact, the very financial information meant to be reviewed for violations of conflict of interest provisions by the board so they can stop the conflict from occurring appear to be the ones that have been hidden from the public so as not to embarrass those required to file.
According to the County Charter, Article XX, the “mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent” are specifically required to publicly make public financial disclosures. All others may file a confidential disclosure.
According to Isobe’s letter
At its meeting on June 4, 2009, the Board of Ethics received a ruling from the Count (sic) Attorney's Office that all Disclosure Statements required to be filed with the Board are public record and must be released if requested by a member of the public.
When releasing this information, we have been instructed to only remove your personal information such as mailing address and contact phone number. For this reason, please be advised that any financial information will NOT be protected as defined under Section 92F-14(6), Hawaii Revised Statutes. (emphasis not added).
The warning is a apparently stunning admission that previously they were not “released if requested by a member of the public” and “financial information (was) protected”.
Two witnesses independently offered that the color went out of Isobe’s shocked-expression face when the board revealed the change of opinion in open session
According to the state constitution’s Code of Ethics:
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures... All financial disclosure statements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before government agencies.
The practice of not disclosing public disclosures is rooted in the county ordinance and BOE rules, both also called the Code of Ethics, which conflict with the more authoritative county charter and state constitution.
Currently the administrative rules of the BOE say
3.1 WHO TO FILE
All elected and appointed officers and employees, who are elected or appointed by officers elected pursuant to law or by County agencies and who have discretionary, executive or policy making powers and responsibilities shall be required to file the disclosure pursuant to Article XX the Code of Ethics
3.2 CONFIDENTIAL INFORMATION
Disclosures filed with the Board are confidential and the Board shall not release the contents thereof except as required by law except as provided under HRS 92F-14 (6).
But a new proposed change, based in part on what the county attorney has apparently told the BOE in a June 4 executive session meeting would reverse that 180 degrees and, if passed, the rules would read
RULE 3: DISCLOSURE REQUIREMENTS
3.1 WHO MUST FILE
The mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent (3/12/09) shall be required to file the disclosure pursuant to the Code of Ethics
3.2 PUBLIC INFORMATION
Disclosures filed with the Board are public record.
The matter was brought to the attention of the board beginning in March through the efforts of a handful of public watchdogs including Horace Stoessel, Glenn Mickens, Ed Coll, Walter Lewis and, especially Rob Abrew who persisted in researching and presenting the documentation that led to the new policy after BOE member Rolf Briber insisted the board pay attention to the pubic testimony.
Abrew and the others questioned why the disclosure forms were being reviewed in executive session in the first place rather than going having them go straight to public purview.
At first members of the board listed an evolving series of seemingly innocuous reasons for the secrecy, none of which indicated any changes to the substantive financial disclosures were made by the board.
But at the April 4 BOE meeting Bieber brought the matter up and the minutes indicate that what went on in executive sessions on financial disclosures was anything but innocuous.
The minutes say:
Chair (Leila) Fuller explained that the Disclosures are reviewed in Executive Session for the purpose of checking for potential conflict of interest but in those Disclosures are personal financial information that may not want to by mistake open the door for something. After they are approved in Executive Session they become a public document so the public has access to those documents once they are approved but the confidential and private information that should not be public knowledge is redacted when a member of the public requests a copy of the disclosure,
Mr. (Paul) Weil asked if they were not public documents from the beginning, the public has access to them even before we have approved or accepted them. Chair Fuller said they have no reason to be a public document before they are accepted. Mr. Weil asked to be directed to the Code that says they are not public documents until the Board has accepted them. Attorney Clark referenced HRS 92-F 14. Staff noted it was a public document except where provided under HRS 92-F 14 (6) which lists items that would be redacted before anyone looks at them.
This was the first admission by a BOE member that financial disclosures were being changed at all much less to avoid “opening the door” by disclosing too much financial information regarding conflicts of interest.
Resistance has been high to changing the rules, first proposed earlier this year, primarily by Fuller and former Chair Mark Hubbard.
Previously reasons they offered for executive session receipt of the disclosures had included making sure they were “complete” and were not “incorrect” since, they said, filers might not realize what they are filing, despite the fact in fling they are required to notarize an “affidavit”.
The further minutes reflect a desperation to find reasons to resist complete public disclosure of the completed public disclosure forms.
Mr. Bieber said his point at minimum was they have a better relationship with the public regarding this. Chair Fuller asked Mr. Bieber how he proposed (the Board) do that. Mr. Bieber said maybe there was another way they could go over the Disclosures, perhaps a packet with Disclosures in them instead of spending time in the meeting in Executive Session doing that. Chair Fuller cautioned against that because if they were to get the Disclosures in a packet that is just that many more pieces of document that are out in the public in case their briefcase gets lost or misplaced and likened it to a State computer with sensitive information on it that got misplaced or lost.
Reached for comment Bieber, said in an email:
Change in application of Disclosure Law has been long overdue for the County employees and officers of Kauai. The Board of Ethics is finally conforming to State Law properly within its Rules.
I am proud to say this came from the public. I simply moved the Board of Ethics to continue to provide the public hearing arena to maintain open dialog. Ethics agreed.
Substantial credit for this change in important Disclosure Law application goes to the public individuals who testified to bring more sunshine into County government operation, a small yet substantial victory for much needed open government and democracy on Kauai.
According to Abrew, at the June 4 meeting after an executive session on the matter the board returned armed with a new county attorney’s opinion requiring the change in policy although he could not say which whether they met with new County Attorney Al Castillo or one of his deputies.
While the written opinion has not been released as yet, the BOE has been the only board or commission to release a county attorney’s opinion in many years and it could be released at their July meeting.
The public is still awaiting a promised new opinion on the enforcement of the prohibition of board and commission members appearing on behalf of private interests before other boards and commissions, as contained in the county charter’s section 20.02(d).
For more information on the BOE read PNN’s three part investigative series Unethical culture- Government service with a personal “touch”
Read Part 1- Bored of Ethics on the Board of Ethics?Read Part 2- The Long and Winding Road to InertiaRead Part 3- Deep Thoughts- A “Handy” Diversion
(PNN)-- Public disclosure of financial information required by state law of certain county officials will now be subject to public review according to a letter to all board and commission members from Executive Assistant and Administrator of the Office of Boards and Commissions, John Isobe.
The Hawai`i State Constitution’s "Code of Ethics” Article XVI states that
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures.
That has apparently never been the case on Kaua`i where the Board of Ethics (BOE) has for decades routinely received the pubic disclosures in executive session where they have redacted whatever they consider to be sensitive and/or personal and financial information as defined in the Universal Information Practices Act’s (UIPA) section 92F-14(6).
As a matter of fact, the very financial information meant to be reviewed for violations of conflict of interest provisions by the board so they can stop the conflict from occurring appear to be the ones that have been hidden from the public so as not to embarrass those required to file.
According to the County Charter, Article XX, the “mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent” are specifically required to publicly make public financial disclosures. All others may file a confidential disclosure.
According to Isobe’s letter
At its meeting on June 4, 2009, the Board of Ethics received a ruling from the Count (sic) Attorney's Office that all Disclosure Statements required to be filed with the Board are public record and must be released if requested by a member of the public.
When releasing this information, we have been instructed to only remove your personal information such as mailing address and contact phone number. For this reason, please be advised that any financial information will NOT be protected as defined under Section 92F-14(6), Hawaii Revised Statutes. (emphasis not added).
The warning is a apparently stunning admission that previously they were not “released if requested by a member of the public” and “financial information (was) protected”.
Two witnesses independently offered that the color went out of Isobe’s shocked-expression face when the board revealed the change of opinion in open session
According to the state constitution’s Code of Ethics:
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures... All financial disclosure statements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before government agencies.
The practice of not disclosing public disclosures is rooted in the county ordinance and BOE rules, both also called the Code of Ethics, which conflict with the more authoritative county charter and state constitution.
Currently the administrative rules of the BOE say
3.1 WHO TO FILE
All elected and appointed officers and employees, who are elected or appointed by officers elected pursuant to law or by County agencies and who have discretionary, executive or policy making powers and responsibilities shall be required to file the disclosure pursuant to Article XX the Code of Ethics
3.2 CONFIDENTIAL INFORMATION
Disclosures filed with the Board are confidential and the Board shall not release the contents thereof except as required by law except as provided under HRS 92F-14 (6).
But a new proposed change, based in part on what the county attorney has apparently told the BOE in a June 4 executive session meeting would reverse that 180 degrees and, if passed, the rules would read
RULE 3: DISCLOSURE REQUIREMENTS
3.1 WHO MUST FILE
The mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent (3/12/09) shall be required to file the disclosure pursuant to the Code of Ethics
3.2 PUBLIC INFORMATION
Disclosures filed with the Board are public record.
The matter was brought to the attention of the board beginning in March through the efforts of a handful of public watchdogs including Horace Stoessel, Glenn Mickens, Ed Coll, Walter Lewis and, especially Rob Abrew who persisted in researching and presenting the documentation that led to the new policy after BOE member Rolf Briber insisted the board pay attention to the pubic testimony.
Abrew and the others questioned why the disclosure forms were being reviewed in executive session in the first place rather than going having them go straight to public purview.
At first members of the board listed an evolving series of seemingly innocuous reasons for the secrecy, none of which indicated any changes to the substantive financial disclosures were made by the board.
But at the April 4 BOE meeting Bieber brought the matter up and the minutes indicate that what went on in executive sessions on financial disclosures was anything but innocuous.
The minutes say:
Chair (Leila) Fuller explained that the Disclosures are reviewed in Executive Session for the purpose of checking for potential conflict of interest but in those Disclosures are personal financial information that may not want to by mistake open the door for something. After they are approved in Executive Session they become a public document so the public has access to those documents once they are approved but the confidential and private information that should not be public knowledge is redacted when a member of the public requests a copy of the disclosure,
Mr. (Paul) Weil asked if they were not public documents from the beginning, the public has access to them even before we have approved or accepted them. Chair Fuller said they have no reason to be a public document before they are accepted. Mr. Weil asked to be directed to the Code that says they are not public documents until the Board has accepted them. Attorney Clark referenced HRS 92-F 14. Staff noted it was a public document except where provided under HRS 92-F 14 (6) which lists items that would be redacted before anyone looks at them.
This was the first admission by a BOE member that financial disclosures were being changed at all much less to avoid “opening the door” by disclosing too much financial information regarding conflicts of interest.
Resistance has been high to changing the rules, first proposed earlier this year, primarily by Fuller and former Chair Mark Hubbard.
Previously reasons they offered for executive session receipt of the disclosures had included making sure they were “complete” and were not “incorrect” since, they said, filers might not realize what they are filing, despite the fact in fling they are required to notarize an “affidavit”.
The further minutes reflect a desperation to find reasons to resist complete public disclosure of the completed public disclosure forms.
Mr. Bieber said his point at minimum was they have a better relationship with the public regarding this. Chair Fuller asked Mr. Bieber how he proposed (the Board) do that. Mr. Bieber said maybe there was another way they could go over the Disclosures, perhaps a packet with Disclosures in them instead of spending time in the meeting in Executive Session doing that. Chair Fuller cautioned against that because if they were to get the Disclosures in a packet that is just that many more pieces of document that are out in the public in case their briefcase gets lost or misplaced and likened it to a State computer with sensitive information on it that got misplaced or lost.
Reached for comment Bieber, said in an email:
Change in application of Disclosure Law has been long overdue for the County employees and officers of Kauai. The Board of Ethics is finally conforming to State Law properly within its Rules.
I am proud to say this came from the public. I simply moved the Board of Ethics to continue to provide the public hearing arena to maintain open dialog. Ethics agreed.
Substantial credit for this change in important Disclosure Law application goes to the public individuals who testified to bring more sunshine into County government operation, a small yet substantial victory for much needed open government and democracy on Kauai.
According to Abrew, at the June 4 meeting after an executive session on the matter the board returned armed with a new county attorney’s opinion requiring the change in policy although he could not say which whether they met with new County Attorney Al Castillo or one of his deputies.
While the written opinion has not been released as yet, the BOE has been the only board or commission to release a county attorney’s opinion in many years and it could be released at their July meeting.
The public is still awaiting a promised new opinion on the enforcement of the prohibition of board and commission members appearing on behalf of private interests before other boards and commissions, as contained in the county charter’s section 20.02(d).
For more information on the BOE read PNN’s three part investigative series Unethical culture- Government service with a personal “touch”
Read Part 1- Bored of Ethics on the Board of Ethics?Read Part 2- The Long and Winding Road to InertiaRead Part 3- Deep Thoughts- A “Handy” Diversion
Friday, June 19, 2009
FOOL ME TWICE I’LL BITE YOUR HEAD OFF
FOOL ME TWICE I’LL BITE YOUR HEAD OFF: Yesterday, in wondering what the heck the council was doing meeting behind closed doors in order to discuss the public policy regarding what we called “implementation” of the citizens’ petitioned charter amendment to enforce the general plan’s growth parameters, we noted that the notice for the June 16 meeting read:
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
In addition we noted that $150,000 had been appropriated and approved to hire a special outside attorney for whatever they were doing.
We stand corrected- the amount is actually $220,000 according to Councilmember Tim Bynum who had complained publicly before the executive session (ES) on Tuesday that he was dissatisfied with the “work product” so far especially for the money they were spending.
And that got us to thinking- always a dangerous proposition.
It led us to wonder why we had characterized the ES as relating to “implementation” of the amendment and presume it was to conduct public policy.
We had seen them do it so often in the past we had to assume, illegal or not, they were doing it again. And when you assume, as the saying goes, you make an ass(of)u(and)me.
So after a little searching we discovered that the term “implement” was never used in the notices for the two previous ES’s on the subject since the ballot measure passed last November.
Our bad-, although we could have sworn the previous notices contained the word it was most likely referred to that way during the meeting and/or in various interviews we conducted while trying to find out why the planning department was continuing to process permitting for visitor accommodations... even though a search of our notes turns up a blank.
The amendment plainly banned the department from doing this and requires the council to do the permitting until they pass legislation forcing the department to enforce the growth limits stated in the general plan.
The working of the amendment raises all sorts of questions as to how this all would work, as we detailed both before and after the election in describing it as a “monkey wrench” provision which we opposed at first but later endorsed fully since the council didn’t seem to be doing anything about out of control growth and this would force them to deal with it.
One thing we didn’t report yesterday was that actually the previous council had met in ES prior to the election and appropriated some of the $220,000- presumably $145,000- for special council at that time according to statements made by Bynum at Tuesday’s meeting.
The other $75,000 was appropriated on June 10 at a “special” council meeting where the appropriation and an ES regarding the matter were the only thing on the agenda other than a routine approval of a state grant.
Questions about why the planning department is still processing zoning permits for visitor accommodation aside, as complicated as it might seem, why would it take six months and $220,000 to figure out how to write the bill to return the permitting power to the Planning Department by restricting growth numbers to those in the general plan?
Councilperson Jay Furfaro, saying the amendment took effect 50 days after the election, also said during the discussion preceding the ES that “some departments are having applicants sign affidavits” when filing for permits but did not elaborate as to which departments and what they signed.
The only possible answer is that, although the agenda notices are carefully worded to avoid saying so, the council is gearing up to file suit to block implementation of the amendment.
Here the what the notice for the January 14. 2009 ES said
(T)he purpose of this executive session is to provide the Council a briefing on the legal ramifications and/or requirements and/or claims and/or potential claims relating to charter amendments adopted in the 2008 general election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.
That should have alerted us to the what was happening but at the time many thought that the wording was just there so they could have a plausible excuse to meet in executive session and hold a discussion of public policy behind closed doors by saying there could be “potential claims” involved.
After all, that was the excuse used last summer when similar closed door discussions of the bill permitting then-illegal vacation rental in residential areas were conducted outside the public purview
Later, on the June 10 agenda it had morphed to say:
(T)he purpose of this executive session is to provide the Council a briefing on the Charter amendments adopted in the 2008 General Election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.
Although the change is subtle it makes it actually further disguises an intent to block implantation and confirm the scuttlebutt that the council was meeting in ES to discuss public policy rather than legal matters.
Misdirection accomplished, both here and among the supporters some of whom told us they were anticipating the council implementing the provision.
Of course that was fine with the council assuming they are trying to get a leg up by filing suit before anyone realizes they are meeting to stop the amendment from taking effect rather than figuring out how to make it work.
The last time they successfully tried to block a citizens' petitioned charter amendment- the so called “`Ohana” amendment to restrict property taxes- they announced their intention and the proponents were ready with a California property rights law firm at the pro bono ready.
Fool them once.....
It should be noted that we have absolutely no direct knowledge that this is the case but this would certainly explain a lot.
That said, one possibly telling statement came from Councilperson Lani Kawahara who, despite an attempt by Castillo to stop any discussion in open session said “I want to assure the public that my main goal is to enact the amendment... aligning our growth with the general plan”.
Also, Bynum in fact did use the word “implementation and other aspects” at one point in referring to the goal of hiring the outside consultant and holding the ES.
It would apparently behoove those who worked so hard to throw this monkey wrench into planning commission and department’s rubber-stamping “dumb growth” program, to gear up for a fight or perhaps file for their own injunction to block zoning permits from being issued before the council files one to block the whole shebang.
Forewarned is forearmed.
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
In addition we noted that $150,000 had been appropriated and approved to hire a special outside attorney for whatever they were doing.
We stand corrected- the amount is actually $220,000 according to Councilmember Tim Bynum who had complained publicly before the executive session (ES) on Tuesday that he was dissatisfied with the “work product” so far especially for the money they were spending.
And that got us to thinking- always a dangerous proposition.
It led us to wonder why we had characterized the ES as relating to “implementation” of the amendment and presume it was to conduct public policy.
We had seen them do it so often in the past we had to assume, illegal or not, they were doing it again. And when you assume, as the saying goes, you make an ass(of)u(and)me.
So after a little searching we discovered that the term “implement” was never used in the notices for the two previous ES’s on the subject since the ballot measure passed last November.
Our bad-, although we could have sworn the previous notices contained the word it was most likely referred to that way during the meeting and/or in various interviews we conducted while trying to find out why the planning department was continuing to process permitting for visitor accommodations... even though a search of our notes turns up a blank.
The amendment plainly banned the department from doing this and requires the council to do the permitting until they pass legislation forcing the department to enforce the growth limits stated in the general plan.
The working of the amendment raises all sorts of questions as to how this all would work, as we detailed both before and after the election in describing it as a “monkey wrench” provision which we opposed at first but later endorsed fully since the council didn’t seem to be doing anything about out of control growth and this would force them to deal with it.
One thing we didn’t report yesterday was that actually the previous council had met in ES prior to the election and appropriated some of the $220,000- presumably $145,000- for special council at that time according to statements made by Bynum at Tuesday’s meeting.
The other $75,000 was appropriated on June 10 at a “special” council meeting where the appropriation and an ES regarding the matter were the only thing on the agenda other than a routine approval of a state grant.
Questions about why the planning department is still processing zoning permits for visitor accommodation aside, as complicated as it might seem, why would it take six months and $220,000 to figure out how to write the bill to return the permitting power to the Planning Department by restricting growth numbers to those in the general plan?
Councilperson Jay Furfaro, saying the amendment took effect 50 days after the election, also said during the discussion preceding the ES that “some departments are having applicants sign affidavits” when filing for permits but did not elaborate as to which departments and what they signed.
The only possible answer is that, although the agenda notices are carefully worded to avoid saying so, the council is gearing up to file suit to block implementation of the amendment.
Here the what the notice for the January 14. 2009 ES said
(T)he purpose of this executive session is to provide the Council a briefing on the legal ramifications and/or requirements and/or claims and/or potential claims relating to charter amendments adopted in the 2008 general election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.
That should have alerted us to the what was happening but at the time many thought that the wording was just there so they could have a plausible excuse to meet in executive session and hold a discussion of public policy behind closed doors by saying there could be “potential claims” involved.
After all, that was the excuse used last summer when similar closed door discussions of the bill permitting then-illegal vacation rental in residential areas were conducted outside the public purview
Later, on the June 10 agenda it had morphed to say:
(T)he purpose of this executive session is to provide the Council a briefing on the Charter amendments adopted in the 2008 General Election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.
Although the change is subtle it makes it actually further disguises an intent to block implantation and confirm the scuttlebutt that the council was meeting in ES to discuss public policy rather than legal matters.
Misdirection accomplished, both here and among the supporters some of whom told us they were anticipating the council implementing the provision.
Of course that was fine with the council assuming they are trying to get a leg up by filing suit before anyone realizes they are meeting to stop the amendment from taking effect rather than figuring out how to make it work.
The last time they successfully tried to block a citizens' petitioned charter amendment- the so called “`Ohana” amendment to restrict property taxes- they announced their intention and the proponents were ready with a California property rights law firm at the pro bono ready.
Fool them once.....
It should be noted that we have absolutely no direct knowledge that this is the case but this would certainly explain a lot.
That said, one possibly telling statement came from Councilperson Lani Kawahara who, despite an attempt by Castillo to stop any discussion in open session said “I want to assure the public that my main goal is to enact the amendment... aligning our growth with the general plan”.
Also, Bynum in fact did use the word “implementation and other aspects” at one point in referring to the goal of hiring the outside consultant and holding the ES.
It would apparently behoove those who worked so hard to throw this monkey wrench into planning commission and department’s rubber-stamping “dumb growth” program, to gear up for a fight or perhaps file for their own injunction to block zoning permits from being issued before the council files one to block the whole shebang.
Forewarned is forearmed.
Thursday, June 18, 2009
SAME OLD DOG, SAME OLD TRICK:
SAME OLD DOG, SAME OLD TRICK: Many in the community are finally opening their eyes to the abuses of open government principles involved in a quest by the two dissident councilperson’s of late.
But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.
The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.
Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.
It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.
But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.
Just this past week the council met in secret by saying
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
Pretty outrageous, eh? And this isn’t the first time.
These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.
You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.
You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part
Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)
But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:
§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.
Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.
Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.
But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?
You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.
And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.
The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.
At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.
The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.
It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.
But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.
The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.
Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.
It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.
But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.
Just this past week the council met in secret by saying
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
Pretty outrageous, eh? And this isn’t the first time.
These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.
You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.
You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part
Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)
But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:
§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.
Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.
Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.
But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?
You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.
And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.
The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.
At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.
The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.
It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.
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