STATE DISABILITIES BOARD SAYS LACK OF ON-LINE ACCESS TO ELECTRONIC “TEXT” DOCUMENTS APPARENTLY VIOLATES ADA
(PNN) The council’s on-line posting of documents in “image files” rather than “text files” is not just an issue of accessibility by the general public but may be an issue of compliance with the Americans With Disabilities Act (ADA) according to Francine Wai, Executive Director of the state’s Disability and Communication Access Board (DCAB).
It turns out that “text” files are required for the visually impaired to use “Screen Reader” software that can voice aloud documents if and only if they are provided in the searchable “text” format, which allows users to "copy and paste” words, sentences and paragraphs.
According to Wai, all government “programs, services and activities” are required to be accessible to the disabled.
“It’s the contention of most people in our files that this is a program of the government,” she said. “We don’t consider (image files) to be accessible.
“It is our advice that this is a program, service or activity (that) is required” she said with one caveat- the law was written before there even was an internet so does not of course specifically mention the posting of documents on-line as being an ADA covered program.
Wai says that although “litigation is not 100% consistent” there has been at least one case involving Southwest Airlines that says that on-line services by private entities is not necessarily required to be accessible to the blind, the same standard does not apply to governmental entities.
“Any case relating to the private sector is not transferable” she said. “I can’t give you a legal opinion but I believe that within a very short time this will be the way government will release information”.
One of the main goals of Kaua`i County Council reform advocates Councilpersons Tim Bynum and Lani Kawahara has been the public’s “on-line” access to council documents.
In recent months PNN has delved in depth into the stonewalling of electronic access the full array of pertinent council materials by Chair Kaipo Asing and County Clerk Peter Nakamura and the local newspaper has provided some coverage as well since the Bynum and Kawahara “went public” with an almost encyclopedic list of obstructionist actions by the Asing and Nakamura, along with proposed solutions at their kauaiinfo.org web site in early May.
When the council services responded early this month with the posting of a small handful of recent meeting minutes, outrage again boiled over, not just at the lack of anything but the minutes and “recap memos” and their outdated nature, but at the fact that they were posted in a format that is useless for anything but reading and printing them out.
Two “letters to the editor” in the local paper – one from IT Professor Ed Coll of Kaua`i Community College and another from Koloa Librarian David Thorp- chided the council for providing only “image” files rather than “text” files.
Only the latter format can used to search the documents by word and allows for “copying and pasting” exact quotations for the preparation of things like letters, testimonies and commentaries without having to re-type them.
Those letters seem to have spurred the council to re-post the small handful of minutes and recap memos that are now at the council’s web site, this time in “text” although there are still only five- the latest being from the June 16th meeting- whereas those at kauaiinfo.org go back to January of 2006.
The problem there is that despite the fact that they were created in electronic form, to post the older ones even Bynum, a member of the council, could not gain access to the original electronic versions and had to “scan” paper copies and create an “image file” and then “convert” them back into text- a method that can sometimes lead to errors in the newly re-created text file when compared with the original.
The ADA requirements do have one exception for governmental entities according to Wai and that is that, if the provision of the service, program or activity would present an undefined “undue burden” on the government they may not have to provide it.
In this case its hard to see where any undue burden would be since almost all public documents- especially government documents but even those submitted from outside entities- are created electronically these days. For the few that aren’t the conversion software is easy and quick to use and is even available as free “shareware” if cost of the software is held to be an obstacle.
As a matter of fact the only undue burden to a government agency appears to be in denying text versions to the blind.
Wai explained that until on-line versions of text files combined with the Screen Reader software make for a “do it yourself at home” way for the blind to access documents, the main way the visually disabled are served is and has been via telephone.
That means that if a document isn’t available in Braille or a blind person can’t read Braille, access requires the vocalization of a document, which is the job of DCAB itself .
Wai says that much of her office’s time is taken up accessing such documents and reading them aloud over the phone, something that could eventually be a thing of the past if documents were all available in text.
While the state legislature’s “paperless” system was instituted this year, the administration and the counties have yet to adapt to such a program.
Wai did note that because of the higher than normal cost of the computer hardware that’s required- and to a lesser extent but still high cost of the software- there is still a big impediment in blind people obtaining the technologic instruments required to use on-line access to documents even when they are in text form
One solution says Wai lies in DCAB’s efforts to provide people with the systems that might actually pay for themselves by freeing up time and energy on all sides of the equation.
She also said that there some confusion on the matter because a whole separate federal provision in Section 508 of the Rehabilitation Act requires agencies who receive federal money to use accessible technology.
Title II of the ADA pertains to all government agencies but doesn’t mention ubiquitous on-line technologies which could not have been foreseen when the ADA was passed.
Monday, July 13, 2009
Wednesday, July 8, 2009
RUNNIN’ IN CIRCLES
RUNNIN’ IN CIRCLES: Anyone who thought Councilperson Jay Furfaro might be abandoning his post at the walls of the Minotaur’s labyrinth and doing a “180” by joining the transparency and open governance dissidents on the council can abandon all hope after reading his letter to the editor today spinning yet another 180 to complete a 360 like a political Baryshnikov.
Furfaro’s letter attempts “to clarify- in the interest of full transparency” the contentions, in a letter from former mayoral candidate Rolf Bieber a week before.
Bieber said that there are “unacceptable levels of county government secrecy” and that his testimony was apparently deliberately withheld from at least some councilmember’s purview.
Furfaro however, in “protesting too much”, actually presents the crux of the dynamics of the lack of proper distribution of pertinent paperwork and constituent testimony that Councilperson Tim Bynum has detailed at his and Councilperson Lani Kawahara’s kauaiinfo.org web site.
Bieber describes his efforts to make sure testimony on one specific agenda item last November- the council’s discussion of a method of releasing those “secret” county attorney opinions- reached councilmembers as well as his persistence in the attempt with no less then three separate tries at making sure councilpersons got the testimony before and at the meeting along with the other materials they routinely receive.
Furfaro throws any number of excuses against the wall hoping one will stick, although it only underlines how the council did not receive the testimony as part of the official packet of communications and presumably constituent testimony.
Furfaro writes:
Mr. Bieber contends that information he sent to councilmembers — via e-mail to the county clerk on Nov. 1, 2008 — which he wished the members to consider for an item on the Nov. 6, 2008 agenda, did not reach members prior to that meeting. This assertion is false.
But the only thing that is false is Furfaro’s weasely straw man arguments and the red herrings he so disingenuously points out.
After selectively scrupulously and needlessly describing only one of the efforts of Bieber, detailing the original receipt of Bieber’s testimony by County Clerk Peter Nakamura he says:
Mr. Nakamura printed and date-stamped copies of this communication and deposited them in each of the councilmembers’ mailboxes. I still have my copy of that communication with the date stamp...
Although I don’t recall the exchange, it could very well have been me to which Mr. Bieber is referring. Because of the election and its related activities, I had not checked my council mailbox since the preceding Saturday, and would not have been familiar with the documentation placed there prior to that day.
And that is precisely the problem. First of all the fact that Furfaro received it and others apparently didn’t- as Bieber details in his letter- shows the selective distribution of testimony by the clerk- one of Bynum’s biggest gripes. But more important is the method- stuffing a paper copy into councilperson’s mailboxes instead of distributing it in the packet where testimony belongs.
This assures it will sometimes get lost along with the myriad other stuff in the mailbox and should not be the preferred method of distributing testimony. It assures that some matter will be lost in the shuffle, as happened in this case.
Electronic distribution seem to be a concept that Furfaro can’t abide, showing either he doesn’t understand the technology or seeks to ignore it.
Here’s how Bieber described what happened:
Nov. 1, 2008, I received an e-mail response from the county clerk telling me that although the office was very busy with general elections, copies of case law (Akaku v. Bennett) I sent directly to the clerk’s office for council view regarding C2008-319 would be “distributed to all council members for the Thursday, Nov. 6 meeting.”
Importantly, the County Attorney’s Office was copied in my communication to the clerk.The evening before the council meeting I decided to testify before council on C2008-319. Up until then, I assumed the Akaku e-mail to the council and county attorney was enough. For courtesy, I delivered a brief e-mail testimony to the “County of Kaua`i/ Council” making sure again the county attorney was copied. The correspondence contained two questions for the council to answer concerning the relevance of Akaku on release of county attorney opinions.
Curious is what happened next.
The following afternoon, Nov. 6, 2008, during council recess shortly before C2008-319, I asked a councilman outside chambers if he had received the Akaku case law. He said he did not. I inquired if he knew anything about my written testimony concerning the agenda item. He said no.
A moment later, before I could arrive to the entrance of council chambers, I was asked to step into a small council office room behind the chamber by the council’s “in-house” attorney. Alone, he urged me not to give testimony on C2008-319. He said it would be a waste of time, that I may embarrass myself and that the case law itself was irrelevant. I responded politely and told him I intended to testify anyway.
Five days before, the clerk told me he would distribute the case law. But then at least one council member said he knew nothing of it and shortly thereafter the council’s attorney discouraged me from giving testimony.
Something was wrong.
Events following are illustrated by council minutes of C2008-319, Nov. 6, 2008 and Ho`ike video in my possession:
Bieber to council: “Did you receive my e-mail, the .pdf file from [County Clerk], the case law?”
[Councilman whom I addressed earlier outside]: “I did not receive anything.”
At that point, the council’s attorney who discouraged my testimony began distributing the case law and written testimony around the table to the council members. Lots of uncomfortable laughter ensued. Perhaps only by coincidence did then the deputy county attorney leave chambers on his phone.
Chairman Furfaro: “May I take a moment before you start [Bieber’s] time. Just to remind everyone that often when you respond to County of Kaua`i, there is a timing issue with circulation and if you use our personal e-mails ... we are able to expedite the communication quicker.”
Finally, if you read the minutes or view video, Akaku was anything but “irrelevant” — it sparked lengthy debate amongst council members and the deputy county attorney concerning release of county attorney opinions.
Although Bieber just describes the facts it’s apparent that someone didn’t want the testimony distributed and it wasn’t.
But Furfaro’s response is especially non responsive to what Bieber actually alleged
Mr. Bieber states in his letter that, upon approaching an unnamed councilmember at the meeting on Nov. 6, he was told by that councilmember that he had not received the information e-mailed on Nov. 1...
While my colleagues and I try diligently to “do our homework” prior to all official proceedings, during election week it is especially difficult to do so. It would not surprise me if other councilmembers had arrived for that Nov. 6 meeting without fully reviewing all of the mail that had accumulated from the week before.
In my mind, there is a significant distinction between not receiving information and not having had the opportunity to review it. No such distinction was made by Mr. Bieber.
What the relevance of the opportunity to review the testimony has in relation to the charges Bieber makes is unknown to anyone by Furfaro. It’s not a distinction but it’s certainly a distraction. If anything it points out that not only wasn’t it properly distributed prior to the meeting but at it as well.
How any of this is relevant is a mystery only Furfaro can answer but his weak attempt at making excuses for the fact that the testimony did not appear on the desks of councilmembers at the meeting until it had to be pried from the hands of staff indicates precisely the problem Furfaro seeks to pooh-pooh.
Plus the fact that he didn’t check his mailbox shows just how inefficient the method of distribution is, as Bynum has detailed.
At any rate, note how Furfaro says HE received it and wants us to infer all others had too although he doesn’t state that. But selective distribution is common practice according to Bynum. Notice also how he presumes he was the one who denied having read it to distract from the fact that it could well have been someone else... or implying he’s so important his reading of it was sufficient for all members to have read it, another common Furfaro-ism.
But it’s the misdirection, irrelevant details and condescending tone in light of the lack of content that stand out. Bieber’s description of “the council’s ‘in-house’ attorney” is attacked by Furfaro who says in fact that “(t)he person to whom he refers to was not the council’s attorney. He was the council’s analyst — another important distinction”.
Another half-truth that tries to misrepresent. In fact the council’s “legislative analysts” are all attorneys who in fact are “in house” as opposed to the attorneys from the county attorney’s office- one of whom was mentioned by Bieber in the letter.
Bieber’s description is exceptionally apt, especially considering the function of at least one of them, Ricky Wantanabe who, it should be mentioned at least once, is more than likely the brains behind chair Kaipo Asing’s dictatorial reign and the whole council secrecy scheme.
Wantanbe basically runs the whole operation, as anyone who has observed the council for any amount of time can tell you. And although we don’t know for sure, we can pretty well guess is the one who pulled Bieber aside to discourage his testimony.
Not only that but the feeble excuse of it being election day doesn’t hold water. Not only isn’t this an isolated incident but getting testimony to councilpersons without citizens’ having to exhibit bulldog persistence should be de rigor no matter what else is going on.
Oh and by the way Deputy County Clerk Ernie Pasion is in charge of running the day to day operation of the election, not Nakamura who, although Kaua`i chief election officer by law, is really the overall administrator and troubleshooter.
But more important than anything is the fact that Furfaro is seeking to play both sides of the fence here, claiming “I’m a dissident too” as he sees that the public outrage grows over the iron fisted reign of Asing, while at the same time protecting the entrenched systematic way that the council and the administrative boards and commissions treat the public with distain and seek to protect members from their inquires and testimony unless people persist beyond all reason.
If Furfaro had any integrity he would choose a side and either stand at the gates of stonewall with Asing, Nakamura and Wantanabe or join what is now an island wide movement that is disgusted with this old boy protection racket and will presumably be demanding change in November 2010.
Bieber’s experience is, as he notes, not an isolated incident as anyone who deals with Nakamura’s council services will tell you. But Furfaro has shown his stripes and any more half hearted attempts to disassociate himself from the forces of opaque governance will be greeted with the derision it so aptly deserves.
Furfaro’s letter attempts “to clarify- in the interest of full transparency” the contentions, in a letter from former mayoral candidate Rolf Bieber a week before.
Bieber said that there are “unacceptable levels of county government secrecy” and that his testimony was apparently deliberately withheld from at least some councilmember’s purview.
Furfaro however, in “protesting too much”, actually presents the crux of the dynamics of the lack of proper distribution of pertinent paperwork and constituent testimony that Councilperson Tim Bynum has detailed at his and Councilperson Lani Kawahara’s kauaiinfo.org web site.
Bieber describes his efforts to make sure testimony on one specific agenda item last November- the council’s discussion of a method of releasing those “secret” county attorney opinions- reached councilmembers as well as his persistence in the attempt with no less then three separate tries at making sure councilpersons got the testimony before and at the meeting along with the other materials they routinely receive.
Furfaro throws any number of excuses against the wall hoping one will stick, although it only underlines how the council did not receive the testimony as part of the official packet of communications and presumably constituent testimony.
Furfaro writes:
Mr. Bieber contends that information he sent to councilmembers — via e-mail to the county clerk on Nov. 1, 2008 — which he wished the members to consider for an item on the Nov. 6, 2008 agenda, did not reach members prior to that meeting. This assertion is false.
But the only thing that is false is Furfaro’s weasely straw man arguments and the red herrings he so disingenuously points out.
After selectively scrupulously and needlessly describing only one of the efforts of Bieber, detailing the original receipt of Bieber’s testimony by County Clerk Peter Nakamura he says:
Mr. Nakamura printed and date-stamped copies of this communication and deposited them in each of the councilmembers’ mailboxes. I still have my copy of that communication with the date stamp...
Although I don’t recall the exchange, it could very well have been me to which Mr. Bieber is referring. Because of the election and its related activities, I had not checked my council mailbox since the preceding Saturday, and would not have been familiar with the documentation placed there prior to that day.
And that is precisely the problem. First of all the fact that Furfaro received it and others apparently didn’t- as Bieber details in his letter- shows the selective distribution of testimony by the clerk- one of Bynum’s biggest gripes. But more important is the method- stuffing a paper copy into councilperson’s mailboxes instead of distributing it in the packet where testimony belongs.
This assures it will sometimes get lost along with the myriad other stuff in the mailbox and should not be the preferred method of distributing testimony. It assures that some matter will be lost in the shuffle, as happened in this case.
Electronic distribution seem to be a concept that Furfaro can’t abide, showing either he doesn’t understand the technology or seeks to ignore it.
Here’s how Bieber described what happened:
Nov. 1, 2008, I received an e-mail response from the county clerk telling me that although the office was very busy with general elections, copies of case law (Akaku v. Bennett) I sent directly to the clerk’s office for council view regarding C2008-319 would be “distributed to all council members for the Thursday, Nov. 6 meeting.”
Importantly, the County Attorney’s Office was copied in my communication to the clerk.The evening before the council meeting I decided to testify before council on C2008-319. Up until then, I assumed the Akaku e-mail to the council and county attorney was enough. For courtesy, I delivered a brief e-mail testimony to the “County of Kaua`i/ Council” making sure again the county attorney was copied. The correspondence contained two questions for the council to answer concerning the relevance of Akaku on release of county attorney opinions.
Curious is what happened next.
The following afternoon, Nov. 6, 2008, during council recess shortly before C2008-319, I asked a councilman outside chambers if he had received the Akaku case law. He said he did not. I inquired if he knew anything about my written testimony concerning the agenda item. He said no.
A moment later, before I could arrive to the entrance of council chambers, I was asked to step into a small council office room behind the chamber by the council’s “in-house” attorney. Alone, he urged me not to give testimony on C2008-319. He said it would be a waste of time, that I may embarrass myself and that the case law itself was irrelevant. I responded politely and told him I intended to testify anyway.
Five days before, the clerk told me he would distribute the case law. But then at least one council member said he knew nothing of it and shortly thereafter the council’s attorney discouraged me from giving testimony.
Something was wrong.
Events following are illustrated by council minutes of C2008-319, Nov. 6, 2008 and Ho`ike video in my possession:
Bieber to council: “Did you receive my e-mail, the .pdf file from [County Clerk], the case law?”
[Councilman whom I addressed earlier outside]: “I did not receive anything.”
At that point, the council’s attorney who discouraged my testimony began distributing the case law and written testimony around the table to the council members. Lots of uncomfortable laughter ensued. Perhaps only by coincidence did then the deputy county attorney leave chambers on his phone.
Chairman Furfaro: “May I take a moment before you start [Bieber’s] time. Just to remind everyone that often when you respond to County of Kaua`i, there is a timing issue with circulation and if you use our personal e-mails ... we are able to expedite the communication quicker.”
Finally, if you read the minutes or view video, Akaku was anything but “irrelevant” — it sparked lengthy debate amongst council members and the deputy county attorney concerning release of county attorney opinions.
Although Bieber just describes the facts it’s apparent that someone didn’t want the testimony distributed and it wasn’t.
But Furfaro’s response is especially non responsive to what Bieber actually alleged
Mr. Bieber states in his letter that, upon approaching an unnamed councilmember at the meeting on Nov. 6, he was told by that councilmember that he had not received the information e-mailed on Nov. 1...
While my colleagues and I try diligently to “do our homework” prior to all official proceedings, during election week it is especially difficult to do so. It would not surprise me if other councilmembers had arrived for that Nov. 6 meeting without fully reviewing all of the mail that had accumulated from the week before.
In my mind, there is a significant distinction between not receiving information and not having had the opportunity to review it. No such distinction was made by Mr. Bieber.
What the relevance of the opportunity to review the testimony has in relation to the charges Bieber makes is unknown to anyone by Furfaro. It’s not a distinction but it’s certainly a distraction. If anything it points out that not only wasn’t it properly distributed prior to the meeting but at it as well.
How any of this is relevant is a mystery only Furfaro can answer but his weak attempt at making excuses for the fact that the testimony did not appear on the desks of councilmembers at the meeting until it had to be pried from the hands of staff indicates precisely the problem Furfaro seeks to pooh-pooh.
Plus the fact that he didn’t check his mailbox shows just how inefficient the method of distribution is, as Bynum has detailed.
At any rate, note how Furfaro says HE received it and wants us to infer all others had too although he doesn’t state that. But selective distribution is common practice according to Bynum. Notice also how he presumes he was the one who denied having read it to distract from the fact that it could well have been someone else... or implying he’s so important his reading of it was sufficient for all members to have read it, another common Furfaro-ism.
But it’s the misdirection, irrelevant details and condescending tone in light of the lack of content that stand out. Bieber’s description of “the council’s ‘in-house’ attorney” is attacked by Furfaro who says in fact that “(t)he person to whom he refers to was not the council’s attorney. He was the council’s analyst — another important distinction”.
Another half-truth that tries to misrepresent. In fact the council’s “legislative analysts” are all attorneys who in fact are “in house” as opposed to the attorneys from the county attorney’s office- one of whom was mentioned by Bieber in the letter.
Bieber’s description is exceptionally apt, especially considering the function of at least one of them, Ricky Wantanabe who, it should be mentioned at least once, is more than likely the brains behind chair Kaipo Asing’s dictatorial reign and the whole council secrecy scheme.
Wantanbe basically runs the whole operation, as anyone who has observed the council for any amount of time can tell you. And although we don’t know for sure, we can pretty well guess is the one who pulled Bieber aside to discourage his testimony.
Not only that but the feeble excuse of it being election day doesn’t hold water. Not only isn’t this an isolated incident but getting testimony to councilpersons without citizens’ having to exhibit bulldog persistence should be de rigor no matter what else is going on.
Oh and by the way Deputy County Clerk Ernie Pasion is in charge of running the day to day operation of the election, not Nakamura who, although Kaua`i chief election officer by law, is really the overall administrator and troubleshooter.
But more important than anything is the fact that Furfaro is seeking to play both sides of the fence here, claiming “I’m a dissident too” as he sees that the public outrage grows over the iron fisted reign of Asing, while at the same time protecting the entrenched systematic way that the council and the administrative boards and commissions treat the public with distain and seek to protect members from their inquires and testimony unless people persist beyond all reason.
If Furfaro had any integrity he would choose a side and either stand at the gates of stonewall with Asing, Nakamura and Wantanabe or join what is now an island wide movement that is disgusted with this old boy protection racket and will presumably be demanding change in November 2010.
Bieber’s experience is, as he notes, not an isolated incident as anyone who deals with Nakamura’s council services will tell you. But Furfaro has shown his stripes and any more half hearted attempts to disassociate himself from the forces of opaque governance will be greeted with the derision it so aptly deserves.
Tuesday, July 7, 2009
SCOOBY ON THE CASE
SCOOBY ON THE CASE: Our excoriation of the “out with the old in with the even older” rehiring of, if not disgraced, at least disgraceful excuse for a journalist Paul Curtis as the police and courts reporter at the local newspaper, filled our inbox with a few other stories of Curtis’ lack of acumen and talent.
But in an un-bylined rewrite of a county press release today it appeared at first blush that his knack for lack of clarity was apparently rubbing off.
Here’s the “news” as the paper reported it:
A 25-year-old Lihu`e man was arrested after attempting to sell stolen jewelry at a pawn shop.Roger Parks, owner of the Gold and Silver Trading Company in Lihu`e, recognized the jewelry as his own and called police to report the incident while the suspect was still in the store, a county news release said Monday.The man was arrested Thursday for second degree theft and released pending further investigation.Parks told police that he discovered Thursday morning that the jewelry was missing from his vehicle which was parked in the parking lot of his Lihu`e condominium. Park had left the jewelry in the trunk of the vehicle the night before, the release says.
Huh? What the heck was Parks doing at this pawn shop when the man tried to sell the jewelry? Was it a miraculous coincidence? Was he there checking to see if anyone had pawned his jewelry? There certainly must be more to the story.
But a check of the county press release shows that the lack of clarity was anything but the paper’s fault although you’d think that they would check the details before regurgitating whatever the county PIO told them.
Well the Hercule Poirot’s among you may have figured it out by now but it took the Honolulu Star Bulletin to make it clear in their re-write:
Pawnshop owner pitched his own jewelry
Kauai pawnshop owner Roger Parks had more than a hunch that the jewelry a man was trying to sell was hot.
Parks recognized the jewelry as his own -- stolen the night before from his vehicle, parked at his condominium in Lihue.
Parks, owner of the Gold and Silver Trading Co. in Lihue, called police while the suspect was waiting in the store trying to sell the stolen merchandise. (emphases added)
Police arrested a 25-year-old man Thursday for second-degree theft.
The man was later released, pending further investigation.
Parks told police he discovered Thursday morning that the jewelry had been stolen.
“Now zat I hev all zee articles here in one room, zee mee-star-ee ees no mee-star-ee at all. Eet is YOU Roger Parks zat ees the ownah of BOTH see pawn shop AND zees Gold and Seelver Tradeeng Companee because- een fact zey are one and de same!
“Now Madam Murphy tell me about zeeze overalls een your chowder.
But in an un-bylined rewrite of a county press release today it appeared at first blush that his knack for lack of clarity was apparently rubbing off.
Here’s the “news” as the paper reported it:
A 25-year-old Lihu`e man was arrested after attempting to sell stolen jewelry at a pawn shop.Roger Parks, owner of the Gold and Silver Trading Company in Lihu`e, recognized the jewelry as his own and called police to report the incident while the suspect was still in the store, a county news release said Monday.The man was arrested Thursday for second degree theft and released pending further investigation.Parks told police that he discovered Thursday morning that the jewelry was missing from his vehicle which was parked in the parking lot of his Lihu`e condominium. Park had left the jewelry in the trunk of the vehicle the night before, the release says.
Huh? What the heck was Parks doing at this pawn shop when the man tried to sell the jewelry? Was it a miraculous coincidence? Was he there checking to see if anyone had pawned his jewelry? There certainly must be more to the story.
But a check of the county press release shows that the lack of clarity was anything but the paper’s fault although you’d think that they would check the details before regurgitating whatever the county PIO told them.
Well the Hercule Poirot’s among you may have figured it out by now but it took the Honolulu Star Bulletin to make it clear in their re-write:
Pawnshop owner pitched his own jewelry
Kauai pawnshop owner Roger Parks had more than a hunch that the jewelry a man was trying to sell was hot.
Parks recognized the jewelry as his own -- stolen the night before from his vehicle, parked at his condominium in Lihue.
Parks, owner of the Gold and Silver Trading Co. in Lihue, called police while the suspect was waiting in the store trying to sell the stolen merchandise. (emphases added)
Police arrested a 25-year-old man Thursday for second-degree theft.
The man was later released, pending further investigation.
Parks told police he discovered Thursday morning that the jewelry had been stolen.
“Now zat I hev all zee articles here in one room, zee mee-star-ee ees no mee-star-ee at all. Eet is YOU Roger Parks zat ees the ownah of BOTH see pawn shop AND zees Gold and Seelver Tradeeng Companee because- een fact zey are one and de same!
“Now Madam Murphy tell me about zeeze overalls een your chowder.
Monday, July 6, 2009
CAN’T YOU SMELL THAT?
CAN’T YOU SMELL THAT?: The Board of Ethics (BOE) is meeting this Thursday and as usual the agenda promises a fun-filled theater of the absurd. All the “regulars” will all be there and you couldn’t find a better morning’s entertainment.
Just show up at 9 a.m. at Liquor Conference Room on 1st Floor of the Mo‘ikeha Building.
For a preview of one item here’s a piece titled “Fair Treatment” from BOE watchdog Horace Stoessel.
If a person had been treated like the Board of Ethics and county attorney’s office have treated Charter Section 20.02D, how would the person feel?
During the last year and a half the board, relying on legal opinions, has (1) given Jonathan Chun permission to continue representing clients before county agencies even though 20.02D prohibits such activities by officers of the county, and (2) dismissed three ethics complaints filed by Rolf Bieber alleging violations of 20.02D.
Note: According to Charter Section 20.05G, the complaints could not be upheld as long as the Chun decision remains in force.
I have followed the process closely. There has been no shortage of statements from the board and attorney’s office aimed at proving that 20.02D cannot possibly mean what it says, or that the County Code amends or modifies the language of 20.02D, or that 20.02D is unfair and leads to absurdities and therefore should not be enforced.
County officers pledge to support and defend the charter. Bearing that fact in mind, I tried to remember statements I had heard or read from the board and the attorney’s office supporting and defending 20.02D. I couldn’t think of a single example.
20.02D appears in an executive session item on the board’s agenda for July 9 related to the ethics complaints dismissed by the board on June 4. The notice for executive session reads in part: “…to consider a communication from the County Attorney clarifying the opinion he gave to the Board on June 4, 2009 and providing the substantive basis for that opinion regarding Charter §20.02 D, County Code 3-1.7 and prior Attorney’s opinion dated March 5, 2008.”
Following the executive session the board will publicly “ratify” matters from the session. Since the board has already approved Chun’s actions and dismissed the complaints, can we reasonably expect the board or the attorney to “support and defend” 20.02D on July 9?
In case you missed it, check out our three part series on the BOE, titled “Unethical Culture- Government Service with a Personal ‘Touch’” linked on the left rail or click here for other PNN/gw? coverage of the circus.
Just show up at 9 a.m. at Liquor Conference Room on 1st Floor of the Mo‘ikeha Building.
For a preview of one item here’s a piece titled “Fair Treatment” from BOE watchdog Horace Stoessel.
If a person had been treated like the Board of Ethics and county attorney’s office have treated Charter Section 20.02D, how would the person feel?
During the last year and a half the board, relying on legal opinions, has (1) given Jonathan Chun permission to continue representing clients before county agencies even though 20.02D prohibits such activities by officers of the county, and (2) dismissed three ethics complaints filed by Rolf Bieber alleging violations of 20.02D.
Note: According to Charter Section 20.05G, the complaints could not be upheld as long as the Chun decision remains in force.
I have followed the process closely. There has been no shortage of statements from the board and attorney’s office aimed at proving that 20.02D cannot possibly mean what it says, or that the County Code amends or modifies the language of 20.02D, or that 20.02D is unfair and leads to absurdities and therefore should not be enforced.
County officers pledge to support and defend the charter. Bearing that fact in mind, I tried to remember statements I had heard or read from the board and the attorney’s office supporting and defending 20.02D. I couldn’t think of a single example.
20.02D appears in an executive session item on the board’s agenda for July 9 related to the ethics complaints dismissed by the board on June 4. The notice for executive session reads in part: “…to consider a communication from the County Attorney clarifying the opinion he gave to the Board on June 4, 2009 and providing the substantive basis for that opinion regarding Charter §20.02 D, County Code 3-1.7 and prior Attorney’s opinion dated March 5, 2008.”
Following the executive session the board will publicly “ratify” matters from the session. Since the board has already approved Chun’s actions and dismissed the complaints, can we reasonably expect the board or the attorney to “support and defend” 20.02D on July 9?
In case you missed it, check out our three part series on the BOE, titled “Unethical Culture- Government Service with a Personal ‘Touch’” linked on the left rail or click here for other PNN/gw? coverage of the circus.
Friday, July 3, 2009
PAGING DR. HEIMLICH
PAGING DR. HEIMLICH: It’s not unusual for besieged pols to pee on your foot and tell you it’s raining while asking us if we’re going to believe them or our own lyin’ eyes..
But for a classic Kaua`i-style “that’s my story and I’m stickin’ to it” take on County Council Chair Kaipo Asing’s and his henchman county clerk Peter Nakamura’s obstinate fight for opaque, closed governance and lack of access to records it took the administration to whip up a gourmet feast of ridiculous, roll-on-the-floor-funny fiction in announcing that they will post the minutes to council meetings on-line at the county’s web site.
Their press release announcing the posting now that dissident Councilmembers Lani Kawahara and Tim Bynum have already done it at their kauaiinfo.org web site, answers our oft asked question “what are we- a bunch of freakin’ idiots” with a resounding “if you believe this, yes”.
The bullsh-t we’re asked to swallow starts at the top where, despite well publicized quotes from administration IT specialist Erik Knutzen that he has been ready for more than a year to post them in an instant and had been prevented by Nakamura and Asing from doing so,
after more than a year of planning the County Council web site will include Council meeting minutes, along with memoranda of actions taken at Council meetings (also called “Recap Memos”)...
Putting meeting minutes and Recap Memos on the Council website is part of a county-wide effort to make more and more public information available online.
The truth is the only year-long effort was to keep them off-line as Bynum and Kawahara have documented and detailed at their kauaiinfo.org web site where they’ve also been posting minutes going back to February as well as other public documents since they posted it in early May.
On to the next mouthful of utter crap.
The implementation of posting Council minutes was delayed by several factors, including the untimely passing of the late Mayor Bryan Baptiste, the complex subsequent transition in county leadership, the special 2008 Mayoral election, the relocation of the Office of the County Clerk - Elections Division, and the seating of a new Council.
As we said Knutzen said, the dynamic duo had been stymied only by Asing’s and Nakamura’s refusal to take two seconds to okay the posting, not by seemingly unrelated minutia.
The fact is that the administration has been posting board and commission meeting minutes routinely for quite some time now and has offered to do so for the council. All these very apparently irrelevant excuses notwithstanding.
One thing that struck us was the availability of what is called “recap memos”- not the fact that they are now going to be available but the fact that such a document exists.
We and others have been asking for years for a way to find out what official actions the council took at meetings as soon as they are over and have always been told there was no such document much less offered one.
It’s always been a supreme hassle to find out what happened at council meetings with the only way to know being to watch the meeting and divine the results from examining future agendas.
No one has ever been offered any such “recap memos” that, we are told, are routinely distributed to the administration.
This press release comes, of course, on the same day as the agenda was released for the July 8 meeting, the first of two alternative dates that a slew of equally if not more important inequities and dictatorial edicts from Chair Asing were supposed to be placed on the agenda for discussion.
It’s not on the July 8 agenda, leaving the showdown scheduled for the July 22 meeting if Asing follows the vote of the council to discuss it on one of the two dates.
One head scratchier is how- and why- Asing and Nakamura had to go to the administration and get poor County Public Information Officer Mary Daubert to do their lying for them.
It indicates that Friend of the Minotaur Mayor Bernard Carvalho is now acting as a cog in Asing’s plantation-era style paternalism in support of the cabal of insiders that run the county through the revolving door personnel polices that have been in effect for decades.
It’s no revelation that they are feeling challenged and threatened by Bynum and Kawahara’s quest for transparency, open governance and democratic principles, especially in light of the current FBI investigation of the county which is still on-going according to recent bureau interviewees.
It is also telling that the “announcement” comes not just from Asing but Vice Chair Jay Furfaro who ran against Asing for the chair last December- with Bynum’s and Kawahara’s support- in a challenge to Asing’s iron-fisted reign.
Furfaro objected to our characterization of the “180” he did between the two meetings earlier this year. During the first, Bynum was blocked from placing resolutions changing the council rules on the agenda and the in next Kawahara changed tactics and managed to get the item placed on a “future” agenda.
Furfaro managed to get his fingerprints on the “day late and dollar short”, minute-posting concession in an self serving and blatant attempt to publicly associate himself with the popular dissidents without actually doing anything about the myriad of other documents that are denied to the public via on-line posting.
Things like the actual communications, resolutions, bills, committee reports and other documentation that accompanies each agenda item- documents which are already available at kauaiinfo.org- remain available only in paper form and require a trip to Lihu`e to obtain.
In addition to Knutzen's document posting program he has said that the administration is also about to start posting and even doing live streaming of the meetings of the planning and police commissions with a feature allowing direct access to “clips” sorted by agenda item.
But despite Knutzen’s offer to do the same for council meetings there’s no announcement here of any plans to allow that to happen when again all that would take is permission from Nakamura and Asing to do so.
It should be pointed out that, for what it’s worth, the county charter says that council and administration are separate organizational entities and, according to the Sunshine Law and UIPA, each are responsible for maintaining their own “records”. But in practice both share the county web site and the contract to facilitate the televising of the various meetings and the “mayor’s show”.
So are we “a bunch of freakin’ idiots”? We sure are if we look at this as some kind of wonderful breakthrough. It’s like ordering and paying for a 12 course meal and getting only a glass of water.
The news here is not that the minutes and recap will be posted- they’re already available on-line no thanks to Asing and Nakamura.
The real news is the council chair’s- not to mention the administration’s- refusal to make all public record available on-line and in a timely manner.
The time to celebrate will only be when all legally-public documents relating to the council, boards, commissions and the administration and it’s departments- itself including all public testimony and correspondence- are available on-line.
Until then the availability of anything less is just another denial of records that apparently violates the Uniform Information Practices Act which, the OIP has recently indicated, mandates widespread distribution of covered documents in electronic form.
The only thing transparent here is the transparently vapid spin claiming that any progress is being made.
----------
Update: In the ES-177 County vs. OIP case we detailed this week, according to reporter Michael Levine of the local newspaper the Hawaii Supreme Court accepted “OIP’s petition for a writ of certiorari on June 23, according to a clerk, and on Wednesday scheduled oral arguments for the morning of Aug. 10.”
But for a classic Kaua`i-style “that’s my story and I’m stickin’ to it” take on County Council Chair Kaipo Asing’s and his henchman county clerk Peter Nakamura’s obstinate fight for opaque, closed governance and lack of access to records it took the administration to whip up a gourmet feast of ridiculous, roll-on-the-floor-funny fiction in announcing that they will post the minutes to council meetings on-line at the county’s web site.
Their press release announcing the posting now that dissident Councilmembers Lani Kawahara and Tim Bynum have already done it at their kauaiinfo.org web site, answers our oft asked question “what are we- a bunch of freakin’ idiots” with a resounding “if you believe this, yes”.
The bullsh-t we’re asked to swallow starts at the top where, despite well publicized quotes from administration IT specialist Erik Knutzen that he has been ready for more than a year to post them in an instant and had been prevented by Nakamura and Asing from doing so,
after more than a year of planning the County Council web site will include Council meeting minutes, along with memoranda of actions taken at Council meetings (also called “Recap Memos”)...
Putting meeting minutes and Recap Memos on the Council website is part of a county-wide effort to make more and more public information available online.
The truth is the only year-long effort was to keep them off-line as Bynum and Kawahara have documented and detailed at their kauaiinfo.org web site where they’ve also been posting minutes going back to February as well as other public documents since they posted it in early May.
On to the next mouthful of utter crap.
The implementation of posting Council minutes was delayed by several factors, including the untimely passing of the late Mayor Bryan Baptiste, the complex subsequent transition in county leadership, the special 2008 Mayoral election, the relocation of the Office of the County Clerk - Elections Division, and the seating of a new Council.
As we said Knutzen said, the dynamic duo had been stymied only by Asing’s and Nakamura’s refusal to take two seconds to okay the posting, not by seemingly unrelated minutia.
The fact is that the administration has been posting board and commission meeting minutes routinely for quite some time now and has offered to do so for the council. All these very apparently irrelevant excuses notwithstanding.
One thing that struck us was the availability of what is called “recap memos”- not the fact that they are now going to be available but the fact that such a document exists.
We and others have been asking for years for a way to find out what official actions the council took at meetings as soon as they are over and have always been told there was no such document much less offered one.
It’s always been a supreme hassle to find out what happened at council meetings with the only way to know being to watch the meeting and divine the results from examining future agendas.
No one has ever been offered any such “recap memos” that, we are told, are routinely distributed to the administration.
This press release comes, of course, on the same day as the agenda was released for the July 8 meeting, the first of two alternative dates that a slew of equally if not more important inequities and dictatorial edicts from Chair Asing were supposed to be placed on the agenda for discussion.
It’s not on the July 8 agenda, leaving the showdown scheduled for the July 22 meeting if Asing follows the vote of the council to discuss it on one of the two dates.
One head scratchier is how- and why- Asing and Nakamura had to go to the administration and get poor County Public Information Officer Mary Daubert to do their lying for them.
It indicates that Friend of the Minotaur Mayor Bernard Carvalho is now acting as a cog in Asing’s plantation-era style paternalism in support of the cabal of insiders that run the county through the revolving door personnel polices that have been in effect for decades.
It’s no revelation that they are feeling challenged and threatened by Bynum and Kawahara’s quest for transparency, open governance and democratic principles, especially in light of the current FBI investigation of the county which is still on-going according to recent bureau interviewees.
It is also telling that the “announcement” comes not just from Asing but Vice Chair Jay Furfaro who ran against Asing for the chair last December- with Bynum’s and Kawahara’s support- in a challenge to Asing’s iron-fisted reign.
Furfaro objected to our characterization of the “180” he did between the two meetings earlier this year. During the first, Bynum was blocked from placing resolutions changing the council rules on the agenda and the in next Kawahara changed tactics and managed to get the item placed on a “future” agenda.
Furfaro managed to get his fingerprints on the “day late and dollar short”, minute-posting concession in an self serving and blatant attempt to publicly associate himself with the popular dissidents without actually doing anything about the myriad of other documents that are denied to the public via on-line posting.
Things like the actual communications, resolutions, bills, committee reports and other documentation that accompanies each agenda item- documents which are already available at kauaiinfo.org- remain available only in paper form and require a trip to Lihu`e to obtain.
In addition to Knutzen's document posting program he has said that the administration is also about to start posting and even doing live streaming of the meetings of the planning and police commissions with a feature allowing direct access to “clips” sorted by agenda item.
But despite Knutzen’s offer to do the same for council meetings there’s no announcement here of any plans to allow that to happen when again all that would take is permission from Nakamura and Asing to do so.
It should be pointed out that, for what it’s worth, the county charter says that council and administration are separate organizational entities and, according to the Sunshine Law and UIPA, each are responsible for maintaining their own “records”. But in practice both share the county web site and the contract to facilitate the televising of the various meetings and the “mayor’s show”.
So are we “a bunch of freakin’ idiots”? We sure are if we look at this as some kind of wonderful breakthrough. It’s like ordering and paying for a 12 course meal and getting only a glass of water.
The news here is not that the minutes and recap will be posted- they’re already available on-line no thanks to Asing and Nakamura.
The real news is the council chair’s- not to mention the administration’s- refusal to make all public record available on-line and in a timely manner.
The time to celebrate will only be when all legally-public documents relating to the council, boards, commissions and the administration and it’s departments- itself including all public testimony and correspondence- are available on-line.
Until then the availability of anything less is just another denial of records that apparently violates the Uniform Information Practices Act which, the OIP has recently indicated, mandates widespread distribution of covered documents in electronic form.
The only thing transparent here is the transparently vapid spin claiming that any progress is being made.
----------
Update: In the ES-177 County vs. OIP case we detailed this week, according to reporter Michael Levine of the local newspaper the Hawaii Supreme Court accepted “OIP’s petition for a writ of certiorari on June 23, according to a clerk, and on Wednesday scheduled oral arguments for the morning of Aug. 10.”
Thursday, July 2, 2009
A LOAD ON THE PAPER
A LOAD ON THE PAPER: The dynamic duo of “new” blood at the local paper in the personages of Editor Nathan Eagle and Assistant Editor Michael Levine has brought a new era of, if nothing else, clear concise writing and reporting on Kaua`i.
But wouldn’t you know someone would go and ruin it with the rehiring of perhaps the worst writer and most ethically challenged reporter in the paper’s and island’s history, Paul Curtis.
Curtis, who has been hired and fired at the paper more than once over the last couple of decades, is the master of sycophantic reporting and has a skill for writing entire articles having no idea what he’s writing about or what the “real story” is.
Today’s Curtis entry, headlined “Mayor asks Commission to defer pay raises” tells us that “Mayor Bernard Carvalho Jr. has asked the county Salary Commission to defer pay raises for himself and county department heads scheduled to take effect Dec. 1”.
Curtis regurgitates Carvalho’s letter to commission Chair Gini Kapali- a former mayoral appointee to several positions over the past decade plus- explaining that, in order to fulfill a campaign promise, he was asking the commission to rescind a 7% increase due in December.
But then there are these seemingly contradictor paragraphs:
The matter is expected to be on the agenda of the Salary Commission’s meeting July 14, said Mercedes Youn of the county Boards and Commissions Office.
In a letter transmitting the salary resolution to the County Council for its consideration, Kapali said the County Charter provides for the commission salary resolution to become effective without concurrence of the mayor and council if not rejected by a super majority of five members of the council within 60 days of its adoption.
How the letter could have been sent when the matter was not yet on the agenda isn’t explained, although presumably he’s referring to a resolution from earlier this year that would be rescinded if the Salary Commission decides to do as Carvalho requests.
This all too typical example of Curtis’ disjointed reporting is but a cog in the overall myopic presentation of the half-truths that Tokioka and Carvalho are trying to foist on the taxpayer because actually the 7% increase is only the last increment of a series of pay raises that have seen the Mayor’s salary go from $75,000 in June of 2007 to $114,490 today.
A 25% across the board increase for department heads, deputies, the county council and various other non-civil service appointees in July of 2005 was followed by 7% increases in both January and December 2008.
The last is scheduled for Dec. 1 2009.
The amount that Carvalho personally would be forgoing would have only raised his salary to $122,504, a raise of a little over $8,000 after close to $40,000 in raises recently.
Of course the fact is that the Mayor could have asked for the rescinding of some of those recent raises but the ever uninquisitive Curtis never asked about that much less tried to put what Carvalho and Tokioka were spoon feeding him in any kind of context.
Not only that but the salary ordinance calls for a salary “range” under the control of the hiring authority for each position giving the mayor the power to pay many of them less than the maximums.
According to the article Tokioka said that going the Salary Commission route was “the easiest way” to freeze salaries and apparently not asking what the other alternative are was also the easiest way for Curtis to avoid either working harder or embarrassing his friend Beth.
What Curtis is doing back at the paper is anyone’s guess. There’s certainly no shortage of out of work reporters these days many with excellent journalistic skills.
Perhaps no one remembers the Andy Gross fiasco.
Gross was an first-rate Business Editor with a Columbia School of Journalism degree a few years back who was not just a skilled writer and reporter but had lived on the island before working for the paper. He actually had a penchant for reporting the truth and digging deeper than the surface reporting that Curtis and other defenders of the realm at the paper have routinely spit out over the years.
Curtis, acting as weekend editor at the time, tried to censor, severely edit and essentially squelch a series of investigatory reports regarding operations at Kaua`i Island Utilities Co-op (KIUC) by Gross causing Gross to quit in disgust. all according to multiple sources at the paper and, they say, Gross himself.
Curtis was fired over the incident but now that Editor Adam Harju, who fired Curtis, is gone apparently no one is left that remember- or wants to remember- the incident.
Curtis got his start in reporting as a mouthpiece for the Nukoli`i developers at the now defunct “Kaua`i Times”, a newspaper that was specifically started to battle the citizen’s petition efforts to block the development at the old dairy, where the resort sticks out like a sore thumb in the middle of nowhere between Lihu`e and Wailua today.
We’re certainly not saying that we actually oppose the salary increases although we suspect many taxpayers do. We actually think that some positions were severely underpaid prior to Jan. 2007.
The council’s salaries went from the low $30,000’s to the mid-50’s and all that’s left to do now is to make them full time positions and rid them of conflicts-of-interest inherent in the outside employment mandated in the past by the old low salaries and their current part-time status.
But surely Tokioka’s PR spin on the “magnanimous” move by her boss deserves more context than the lazy reporting style Curtis has exhibited on the island over the last 25 years.
But wouldn’t you know someone would go and ruin it with the rehiring of perhaps the worst writer and most ethically challenged reporter in the paper’s and island’s history, Paul Curtis.
Curtis, who has been hired and fired at the paper more than once over the last couple of decades, is the master of sycophantic reporting and has a skill for writing entire articles having no idea what he’s writing about or what the “real story” is.
Today’s Curtis entry, headlined “Mayor asks Commission to defer pay raises” tells us that “Mayor Bernard Carvalho Jr. has asked the county Salary Commission to defer pay raises for himself and county department heads scheduled to take effect Dec. 1”.
Curtis regurgitates Carvalho’s letter to commission Chair Gini Kapali- a former mayoral appointee to several positions over the past decade plus- explaining that, in order to fulfill a campaign promise, he was asking the commission to rescind a 7% increase due in December.
But then there are these seemingly contradictor paragraphs:
The matter is expected to be on the agenda of the Salary Commission’s meeting July 14, said Mercedes Youn of the county Boards and Commissions Office.
In a letter transmitting the salary resolution to the County Council for its consideration, Kapali said the County Charter provides for the commission salary resolution to become effective without concurrence of the mayor and council if not rejected by a super majority of five members of the council within 60 days of its adoption.
How the letter could have been sent when the matter was not yet on the agenda isn’t explained, although presumably he’s referring to a resolution from earlier this year that would be rescinded if the Salary Commission decides to do as Carvalho requests.
This all too typical example of Curtis’ disjointed reporting is but a cog in the overall myopic presentation of the half-truths that Tokioka and Carvalho are trying to foist on the taxpayer because actually the 7% increase is only the last increment of a series of pay raises that have seen the Mayor’s salary go from $75,000 in June of 2007 to $114,490 today.
A 25% across the board increase for department heads, deputies, the county council and various other non-civil service appointees in July of 2005 was followed by 7% increases in both January and December 2008.
The last is scheduled for Dec. 1 2009.
The amount that Carvalho personally would be forgoing would have only raised his salary to $122,504, a raise of a little over $8,000 after close to $40,000 in raises recently.
Of course the fact is that the Mayor could have asked for the rescinding of some of those recent raises but the ever uninquisitive Curtis never asked about that much less tried to put what Carvalho and Tokioka were spoon feeding him in any kind of context.
Not only that but the salary ordinance calls for a salary “range” under the control of the hiring authority for each position giving the mayor the power to pay many of them less than the maximums.
According to the article Tokioka said that going the Salary Commission route was “the easiest way” to freeze salaries and apparently not asking what the other alternative are was also the easiest way for Curtis to avoid either working harder or embarrassing his friend Beth.
What Curtis is doing back at the paper is anyone’s guess. There’s certainly no shortage of out of work reporters these days many with excellent journalistic skills.
Perhaps no one remembers the Andy Gross fiasco.
Gross was an first-rate Business Editor with a Columbia School of Journalism degree a few years back who was not just a skilled writer and reporter but had lived on the island before working for the paper. He actually had a penchant for reporting the truth and digging deeper than the surface reporting that Curtis and other defenders of the realm at the paper have routinely spit out over the years.
Curtis, acting as weekend editor at the time, tried to censor, severely edit and essentially squelch a series of investigatory reports regarding operations at Kaua`i Island Utilities Co-op (KIUC) by Gross causing Gross to quit in disgust. all according to multiple sources at the paper and, they say, Gross himself.
Curtis was fired over the incident but now that Editor Adam Harju, who fired Curtis, is gone apparently no one is left that remember- or wants to remember- the incident.
Curtis got his start in reporting as a mouthpiece for the Nukoli`i developers at the now defunct “Kaua`i Times”, a newspaper that was specifically started to battle the citizen’s petition efforts to block the development at the old dairy, where the resort sticks out like a sore thumb in the middle of nowhere between Lihu`e and Wailua today.
We’re certainly not saying that we actually oppose the salary increases although we suspect many taxpayers do. We actually think that some positions were severely underpaid prior to Jan. 2007.
The council’s salaries went from the low $30,000’s to the mid-50’s and all that’s left to do now is to make them full time positions and rid them of conflicts-of-interest inherent in the outside employment mandated in the past by the old low salaries and their current part-time status.
But surely Tokioka’s PR spin on the “magnanimous” move by her boss deserves more context than the lazy reporting style Curtis has exhibited on the island over the last 25 years.
Wednesday, July 1, 2009
WRIT LARGE
WRIT LARGE: We’re now in possession of a “quotable” text copy of the Office of Information Practice (OIP) application for “writ of certiorari” (mahalo to Larry Geller for the excellent conversion work) regarding the infamous ES (executive session) 177 the Kaua`i County Council held in January 2005 (we mistakenly said 2006 yesterday).
If the Hawai`i Supreme Court accepts the writ they will hear an appeal of an Intermediate Court of Appeal’s (ICA) decision upholding a 5th circuit court ruling denying the access to the minutes of the meeting.
According to the brief
The ICA decision concerns an OIP administrative determination that certain council meeting minutes be disclosed under the State public records law, chapter 92F, FIRS, the Uniform Information Practices Act (Modified) (the - UIPA"). I The ICA affirmed the lower court's ruling that this action was properly brought under chapter 92, HRS, because that chapter's statutory scheme controls the disclosure of minutes.`' The ICA also affirmed the lower court's conclusion that the minutes were properly withheld in their entirety because of the compelling reasons for respecting and preserving the attorney-client privilege also afforded public agencies and because the privileged portions of the minutes were so intertwined with non-privileged portions that redaction would be impractical.
But let’s start at the beginning.
In January 2005 a new county council had just taken office with two new members- Mel Rapozo and Shaylene Iseri-Carvalho. Both were avowed political enemies of newly selected Police Chief KC Lum who was the Lieutenant on duty when the “lap dancer incident” took place and Rapozo by all accounts claimed Lum “turned in” Rapozo after another officer told Lum what was going on in the room next door that night.
Rapozo held Lum responsible for his ouster from the Kaua`i Police Department in the infamous “lap dancer” incident as detailed in the book “KPD Blue” (see left rail to read the book in it’s entirety). Iseri was married to Destry Carvalho, a KPD officer who was part of a faction that opposed Lum. She also, according to multiple sources, hald a grudge against Lum stemming from an incident when Lum was an officer and he tried multiple times to break up a loud party Iseri- at the time a deputy county prosecutor- was hosting at Lydgate Pavilion.
At the time Democratic Party members of the council also didn’t like the two members of the Police Commission who installed Lum- Chair Michael Ching, a prominent independent Hanalei business owner and commissioner Carol Furtado, a Republican.
So they called for an executive session to talk about either, for the first time ever invoking a charter provision, (3.17) that allows the council to investigate administrative departments, and/or finding out what the Board of Ethics was doing regarding their own investigation of the appointment.
Here’s the notice as it appeared on the agenda on Jan 20, 2005
Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4 and 92-5(a)(6), the purposes of this executive session are (1) to deliberate and decide whether an investigation of the Kaua`i Police Department should be conducted pursuant to §3.17 of the Kaua`i County Charter and the process to be used in the investigation (2) to consult with the County's legal counsel on legal issues regarding these matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item.
According to OIP’s “Statement of the Case” there’s probably more than you wanted to know about what happened next.
(After the meeting) OIP was initially asked by then chairperson of the Kauai Police Commission, Mr. Michael Ching, to investigate whether the meeting had complied with the Sunshine Law, including whether the executive meeting purposes cited applied to the matters discussed by the Council in the ES-177 Meeting.
OIP reviewed the ES-177 Meeting transcript (the "ES-177 Minutes") in camera, and considered the Council's stated justification for the executive meeting. By letter dated April 14, 2005 (the "April 14 opinion"), OIP found that a limited portion of the ES-177 meeting in fact consisted of protected attorney-client consultation under the standard for the open meeting exception at § 92-5(a)(4). (ES-177 Minutes filed under seal). However, OIP found that the remainder of the Council's discussion did not fall within the cited exceptions, and thus found that the remainder of the ES-177 Meeting should have been open to the public. Accordingly, O1P advised the Council to make the minutes of those portions of the ES-177 Meeting public (the "Public ES-177 Minutes").
OIP subsequently received UIPA appeals from Mr. Ching and another member of the public (the "Requesters"), who stated that they had made record requests to the Council in April 2005 for copies of the ES-177 Minutes, but had not received any response. Prior to and after those appeals, the Council asked for reconsideration of the underlying
Sunshine Law issue, and cited to three additional executive meeting purposes. OIP found no basis for reconsideration of the Sunshine Law question because the ES-177 Meeting discussions did not fall within any of the newly cited purposes. Accordingly, OIP determined that the UIPA required the Council to give the Requesters access to the Public ES-177 Minutes (the "May 20 determination").
Note here that the matter was no longer just whether or not there should have been an “open meeting” under the Sunshine Law (HRS- §92) but whether the minutes to the meeting were open records under the Uniform Information Practices Act (HRS- §92F).
The writ continues:
OIP agreed by letter dated June 9, 2005, to allow the Council a final opportunity to supplement its position. However, OIP could not agree to a "commitment of confidentiality" regarding that position, OIP only reviewed Council's subsequently offered general discussion of the attorney-client privilege and desire to discuss investigations in closed meetings, which OIP again determined insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On June 22, 2005, the Council again provided a generalized discussion of the attorney-client privilege and the Council's desire to discuss investigations in closed meetings, which OIP had previously determined was insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On July 14, 2005, the Council filed its action seeking declaratory and injunctive relief from OIP's determination that the Public ES-177 Minutes must be disclosed.
There are basically four arguments for why the ICA erred in upholding the 5th circuit court decision. We’ll list them with partial excerpts excluding much of the case law but including the pertinent statutory language and citations for those that want to understand the case the OIP is presenting and why it’s implications go far beyond ES-177, affecting the very future of the OIP itself.
I. The ICA gravely erred by affirming that Chapter 92 authorizes Council's action challenging an OIP decision to disclose a record, given chapter 92F's plain language, clear statutory scheme and legislative history that denies an agency the right to bring a court action for that purpose.
OIP believes that the ICA committed grave error in affirming circuit court jurisdiction to hear the Council's original action under chapter 92 without then limiting its review to determining applicability of that chapter. Rather, the court went further, applying its Sunshine Law interpretation to determine disclosure of a government record under both the Sunshine Law and the UIPA. Allowing an agency to bring a court action to challenge an OIP decision to disclose a government record in this matter conflicts with the plain language of § 92F-15.5, and circumvents the UIPA's underlying policy and remedial scheme and stated legislative intent clearly disallowing such agency action. In effect, the ICA decision now allows agencies to utilize the court system, delaying for years any resolution on disclosure and circumventing the legislative intent to provide the public with efficient resolution of records disputes. Given the Legislature's stated purpose of the UIPA and the policy of this state in § 92F-2, it is clear that in denying agencies the right to sue each other, the Legislature found the rights of the public to scrutinize and participate in government to outweigh an agency's ability to judicially contest disclosure of a government record.
Where a government agency denies a person access to any record, that person may appeal by judicial action under § 92F-15 or, alternatively, by administrative appeal to OIP under § 92F-15.5 (without prejudice to the right to seek judicial review). Where appeal to OIP is made, § 92F-15.5(b) directs in full as follows:
(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). (emphasis added).
OIP believes that this unambiguous language must mean that when a person appeals to OIP and OIP's decision is to disclose, an agency must generally be bound by that decision... Further, any possible ambiguity is extinguished by the Legislature's clear intent to bar agency suits against OIP over its record decision:
Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other. Conf Comm. Rep. No. 17, Haw. S. J. 763-64 (1989) (emphasis added).
Thus, the ICA's affirmation based upon a right of action arising outside of chapter 92F, despite the plain language of § 92F-15.5(b), appears to "completely ignore the obvious meaning and intent of the statute."
But the ICA did not recognize any of that and, as the OIP then says,
The Sunshine Law, in contrast to the UIPA, which provides for no agency actions (including by OIP), has a general "any person may commence an action" standard, for the purpose of requiring compliance, preventing violations, or determining applicability of part I of chapter 92. Compare HRS § 92-12(c) with § 92F-15 and -15.5(b). However, the Council here did not solely seek the court's application of a Sunshine Law provision. Its action went further, directly seeking to invalidate OIP's decision under the UIPA to disclose the ES-177 Minutes. Given the foregoing, OIP believes that finding the Sunshine Law to allow court adjudication of OIP's determination regarding the minutes cannot be reconciled with the language of § 92-15.5, its legislative history, or the UIPA's purpose and remedial scheme.
The second argument is one that shows how persistence pays off. A couple of years back, what has been called the “secret sunshine law” was “discovered”. Since then council watchdog Glenn Mickens has told the council of HRS 92-71 part of Section II of the part that contains the Sunshine Law. It states
"in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply."
Well as fate would have it, the Kaua`i County charter has a provision 3.07(e) that says. according to the brief that “restricts the Council's use of closed meetings to (1) deliberations to confirm appointees or (2) ‘consultations with the county attorney on claims.’ (emphasis added)”
Though the charter was changed this past November by tricking people into voting to delete it under the guise of assuring that the charter “conform” with the Sunshine Law, it was in effect when ES-177 was held and a ruling releasing those minutes could also free up many of the minutes of ES meetings held before the provision took effect.
Mickens and later open government advocate Ken Taylor hounded the OIP with this matter, at first being rejected because OIP only administers Part 1 of the Sunshine Law (92-71 is in part two) but through his persistence the argument is included in the Supreme Court brief.
OIP asked
2. Assuming this action may properly be heard, the ICA gravely erred by not giving effect to the Kauai County Charter's more restrictive standard for closing a council meeting, given the plain language of § 92-71 that directs that a more stringent county standard "shall apply."
OIP did not have reason to address § 3.07E in its UIPA decision because OIP found that the Sunshine Law required the minutes to be public. OIP raised this provision to the circuit court and to the ICA to show that the Council's broadly applied attorney-client privilege to protect all its discussions with its counsel was not only contrary to the legislative intent underlying § 92- 5(a)(4) and other judicial opinions limiting to varying degrees the extent of the privilege for government attorneys, but also directly contradicted its own charter provision.
The third is really the meat of the appeal for those who object to the Kaua`i council’s penchant for going into executive session for public policy matters disguising them under a provision (HRS 92-5(a)4) that allows them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” and it’s relationship to the standard “attorney client privilege” which, the OIP says, is limited by overriding state law in the case of boards and commissions covered by the Sunshine Law.
The OIP says
3. The ICA gravely erred by failing to consider the legislative history indicating that he Legislature intentionally narrowed the attorney-client executive meeting purpose to cover only specified types of consultation between a board and its attorney.
As discussed in OIP's Opening Brief at 25-27, in 1985 the Legislature deliberately narrowed § 92-5(a)(4), the attorney-client executive meeting purpose, to apply to only limited types of consultation between a board and its attorney. As further discussed in OIP's Opening Brief at 23-30, this limitation of the attorney-client executive meeting purpose is consistent with the narrower scope of the attorney-client privilege generally when applied to government attorneys and clients in both this State and in other jurisdictions, as well as with the Sunshine Law's and the UIPA's general purpose and intent. See, e.g., HRS §§ 28-3, 92-1, and 92F-2. The ICA gravely erred by failing to consider the legislative history of § 92-5(a)(4) in deciding its scope. See Decision at 19-22. Instead, contrary to the legislative intent expressed in the 1985 amendment to § 92-5(a)(4) and the legislative mandate expressed in § 92-1 that exceptions to open meetings shall be strictly construed against closed meetings, the ICA interpreted the attorney-client executive meeting purpose broadly to encompass all discussion between the Council and its attorney in the meeting in question.
Lastly the OIP basically says "what are we here for if not this kind of determination since our oversight is plainly stated in the law and legislative intent". They say
4. The ICA gravely erred by failing to defer to OIP's interpretation of the breadth of the Sunshine Law's attorney-client executive meeting purpose under the "palpably erroneous" standard and to OIP's UIPA determination under the "abuse of discretion" standard.
One other thing of note is contained in a separate brief – the one filed by the county and upheld by the ICA. It contains a brief description of what went on in ES-177.
OIP's review of the ES[-]177 Minutes indicate[s] that the ongoing investigations discussed were limited to (1) an investigation being conducted by the County of Kauai, Board of Ethics, (2) a police investigation which had been turned over to the County of Kauai Prosecutor and (3) a proposed investigation into the termination of a KPD recruit. It is the opinion of OIP that the matters considered by the Council in ES[-]177 do not constitute "sensitive matters related to public safety or security."
Many believe that what went on was that Rapozo “went off” on Lum, Ching and/or Furtado and aired long held gripes against the department. Some of that was intimated in some of the correspondence between OIP and the county following the OIP’s review of the minutes and determination that they were public records.
It was thought by many political observers that Chair Kaipo Asing then “protected” Rapozo by fighting the release of the minutes, giving him a political Sword of Damocles to hang over Rapozo’s head should Rapozo try to maintain his rebel and maverick image, cultivated during the previous campaign
We’ll try to keep up with the case when and if it is granted review by the Supreme Court of Hawai`i. If anyone wants a copy of both documents- the OIP’s appeal and the ICA ruling- let us know at gotwindmills(at)gmail.com and we’ll get them to you.
-----------
The powers that be will be happy to know that we’ll be taking the occasional day off during the next two months while entertaining ka mo`opuna, who’s here for the summer. We’ll try to make up for it by being twice as caustic when we do post.
If the Hawai`i Supreme Court accepts the writ they will hear an appeal of an Intermediate Court of Appeal’s (ICA) decision upholding a 5th circuit court ruling denying the access to the minutes of the meeting.
According to the brief
The ICA decision concerns an OIP administrative determination that certain council meeting minutes be disclosed under the State public records law, chapter 92F, FIRS, the Uniform Information Practices Act (Modified) (the - UIPA"). I The ICA affirmed the lower court's ruling that this action was properly brought under chapter 92, HRS, because that chapter's statutory scheme controls the disclosure of minutes.`' The ICA also affirmed the lower court's conclusion that the minutes were properly withheld in their entirety because of the compelling reasons for respecting and preserving the attorney-client privilege also afforded public agencies and because the privileged portions of the minutes were so intertwined with non-privileged portions that redaction would be impractical.
But let’s start at the beginning.
In January 2005 a new county council had just taken office with two new members- Mel Rapozo and Shaylene Iseri-Carvalho. Both were avowed political enemies of newly selected Police Chief KC Lum who was the Lieutenant on duty when the “lap dancer incident” took place and Rapozo by all accounts claimed Lum “turned in” Rapozo after another officer told Lum what was going on in the room next door that night.
Rapozo held Lum responsible for his ouster from the Kaua`i Police Department in the infamous “lap dancer” incident as detailed in the book “KPD Blue” (see left rail to read the book in it’s entirety). Iseri was married to Destry Carvalho, a KPD officer who was part of a faction that opposed Lum. She also, according to multiple sources, hald a grudge against Lum stemming from an incident when Lum was an officer and he tried multiple times to break up a loud party Iseri- at the time a deputy county prosecutor- was hosting at Lydgate Pavilion.
At the time Democratic Party members of the council also didn’t like the two members of the Police Commission who installed Lum- Chair Michael Ching, a prominent independent Hanalei business owner and commissioner Carol Furtado, a Republican.
So they called for an executive session to talk about either, for the first time ever invoking a charter provision, (3.17) that allows the council to investigate administrative departments, and/or finding out what the Board of Ethics was doing regarding their own investigation of the appointment.
Here’s the notice as it appeared on the agenda on Jan 20, 2005
Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4 and 92-5(a)(6), the purposes of this executive session are (1) to deliberate and decide whether an investigation of the Kaua`i Police Department should be conducted pursuant to §3.17 of the Kaua`i County Charter and the process to be used in the investigation (2) to consult with the County's legal counsel on legal issues regarding these matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item.
According to OIP’s “Statement of the Case” there’s probably more than you wanted to know about what happened next.
(After the meeting) OIP was initially asked by then chairperson of the Kauai Police Commission, Mr. Michael Ching, to investigate whether the meeting had complied with the Sunshine Law, including whether the executive meeting purposes cited applied to the matters discussed by the Council in the ES-177 Meeting.
OIP reviewed the ES-177 Meeting transcript (the "ES-177 Minutes") in camera, and considered the Council's stated justification for the executive meeting. By letter dated April 14, 2005 (the "April 14 opinion"), OIP found that a limited portion of the ES-177 meeting in fact consisted of protected attorney-client consultation under the standard for the open meeting exception at § 92-5(a)(4). (ES-177 Minutes filed under seal). However, OIP found that the remainder of the Council's discussion did not fall within the cited exceptions, and thus found that the remainder of the ES-177 Meeting should have been open to the public. Accordingly, O1P advised the Council to make the minutes of those portions of the ES-177 Meeting public (the "Public ES-177 Minutes").
OIP subsequently received UIPA appeals from Mr. Ching and another member of the public (the "Requesters"), who stated that they had made record requests to the Council in April 2005 for copies of the ES-177 Minutes, but had not received any response. Prior to and after those appeals, the Council asked for reconsideration of the underlying
Sunshine Law issue, and cited to three additional executive meeting purposes. OIP found no basis for reconsideration of the Sunshine Law question because the ES-177 Meeting discussions did not fall within any of the newly cited purposes. Accordingly, OIP determined that the UIPA required the Council to give the Requesters access to the Public ES-177 Minutes (the "May 20 determination").
Note here that the matter was no longer just whether or not there should have been an “open meeting” under the Sunshine Law (HRS- §92) but whether the minutes to the meeting were open records under the Uniform Information Practices Act (HRS- §92F).
The writ continues:
OIP agreed by letter dated June 9, 2005, to allow the Council a final opportunity to supplement its position. However, OIP could not agree to a "commitment of confidentiality" regarding that position, OIP only reviewed Council's subsequently offered general discussion of the attorney-client privilege and desire to discuss investigations in closed meetings, which OIP again determined insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On June 22, 2005, the Council again provided a generalized discussion of the attorney-client privilege and the Council's desire to discuss investigations in closed meetings, which OIP had previously determined was insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On July 14, 2005, the Council filed its action seeking declaratory and injunctive relief from OIP's determination that the Public ES-177 Minutes must be disclosed.
There are basically four arguments for why the ICA erred in upholding the 5th circuit court decision. We’ll list them with partial excerpts excluding much of the case law but including the pertinent statutory language and citations for those that want to understand the case the OIP is presenting and why it’s implications go far beyond ES-177, affecting the very future of the OIP itself.
I. The ICA gravely erred by affirming that Chapter 92 authorizes Council's action challenging an OIP decision to disclose a record, given chapter 92F's plain language, clear statutory scheme and legislative history that denies an agency the right to bring a court action for that purpose.
OIP believes that the ICA committed grave error in affirming circuit court jurisdiction to hear the Council's original action under chapter 92 without then limiting its review to determining applicability of that chapter. Rather, the court went further, applying its Sunshine Law interpretation to determine disclosure of a government record under both the Sunshine Law and the UIPA. Allowing an agency to bring a court action to challenge an OIP decision to disclose a government record in this matter conflicts with the plain language of § 92F-15.5, and circumvents the UIPA's underlying policy and remedial scheme and stated legislative intent clearly disallowing such agency action. In effect, the ICA decision now allows agencies to utilize the court system, delaying for years any resolution on disclosure and circumventing the legislative intent to provide the public with efficient resolution of records disputes. Given the Legislature's stated purpose of the UIPA and the policy of this state in § 92F-2, it is clear that in denying agencies the right to sue each other, the Legislature found the rights of the public to scrutinize and participate in government to outweigh an agency's ability to judicially contest disclosure of a government record.
Where a government agency denies a person access to any record, that person may appeal by judicial action under § 92F-15 or, alternatively, by administrative appeal to OIP under § 92F-15.5 (without prejudice to the right to seek judicial review). Where appeal to OIP is made, § 92F-15.5(b) directs in full as follows:
(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). (emphasis added).
OIP believes that this unambiguous language must mean that when a person appeals to OIP and OIP's decision is to disclose, an agency must generally be bound by that decision... Further, any possible ambiguity is extinguished by the Legislature's clear intent to bar agency suits against OIP over its record decision:
Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other. Conf Comm. Rep. No. 17, Haw. S. J. 763-64 (1989) (emphasis added).
Thus, the ICA's affirmation based upon a right of action arising outside of chapter 92F, despite the plain language of § 92F-15.5(b), appears to "completely ignore the obvious meaning and intent of the statute."
But the ICA did not recognize any of that and, as the OIP then says,
The Sunshine Law, in contrast to the UIPA, which provides for no agency actions (including by OIP), has a general "any person may commence an action" standard, for the purpose of requiring compliance, preventing violations, or determining applicability of part I of chapter 92. Compare HRS § 92-12(c) with § 92F-15 and -15.5(b). However, the Council here did not solely seek the court's application of a Sunshine Law provision. Its action went further, directly seeking to invalidate OIP's decision under the UIPA to disclose the ES-177 Minutes. Given the foregoing, OIP believes that finding the Sunshine Law to allow court adjudication of OIP's determination regarding the minutes cannot be reconciled with the language of § 92-15.5, its legislative history, or the UIPA's purpose and remedial scheme.
The second argument is one that shows how persistence pays off. A couple of years back, what has been called the “secret sunshine law” was “discovered”. Since then council watchdog Glenn Mickens has told the council of HRS 92-71 part of Section II of the part that contains the Sunshine Law. It states
"in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply."
Well as fate would have it, the Kaua`i County charter has a provision 3.07(e) that says. according to the brief that “restricts the Council's use of closed meetings to (1) deliberations to confirm appointees or (2) ‘consultations with the county attorney on claims.’ (emphasis added)”
Though the charter was changed this past November by tricking people into voting to delete it under the guise of assuring that the charter “conform” with the Sunshine Law, it was in effect when ES-177 was held and a ruling releasing those minutes could also free up many of the minutes of ES meetings held before the provision took effect.
Mickens and later open government advocate Ken Taylor hounded the OIP with this matter, at first being rejected because OIP only administers Part 1 of the Sunshine Law (92-71 is in part two) but through his persistence the argument is included in the Supreme Court brief.
OIP asked
2. Assuming this action may properly be heard, the ICA gravely erred by not giving effect to the Kauai County Charter's more restrictive standard for closing a council meeting, given the plain language of § 92-71 that directs that a more stringent county standard "shall apply."
OIP did not have reason to address § 3.07E in its UIPA decision because OIP found that the Sunshine Law required the minutes to be public. OIP raised this provision to the circuit court and to the ICA to show that the Council's broadly applied attorney-client privilege to protect all its discussions with its counsel was not only contrary to the legislative intent underlying § 92- 5(a)(4) and other judicial opinions limiting to varying degrees the extent of the privilege for government attorneys, but also directly contradicted its own charter provision.
The third is really the meat of the appeal for those who object to the Kaua`i council’s penchant for going into executive session for public policy matters disguising them under a provision (HRS 92-5(a)4) that allows them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” and it’s relationship to the standard “attorney client privilege” which, the OIP says, is limited by overriding state law in the case of boards and commissions covered by the Sunshine Law.
The OIP says
3. The ICA gravely erred by failing to consider the legislative history indicating that he Legislature intentionally narrowed the attorney-client executive meeting purpose to cover only specified types of consultation between a board and its attorney.
As discussed in OIP's Opening Brief at 25-27, in 1985 the Legislature deliberately narrowed § 92-5(a)(4), the attorney-client executive meeting purpose, to apply to only limited types of consultation between a board and its attorney. As further discussed in OIP's Opening Brief at 23-30, this limitation of the attorney-client executive meeting purpose is consistent with the narrower scope of the attorney-client privilege generally when applied to government attorneys and clients in both this State and in other jurisdictions, as well as with the Sunshine Law's and the UIPA's general purpose and intent. See, e.g., HRS §§ 28-3, 92-1, and 92F-2. The ICA gravely erred by failing to consider the legislative history of § 92-5(a)(4) in deciding its scope. See Decision at 19-22. Instead, contrary to the legislative intent expressed in the 1985 amendment to § 92-5(a)(4) and the legislative mandate expressed in § 92-1 that exceptions to open meetings shall be strictly construed against closed meetings, the ICA interpreted the attorney-client executive meeting purpose broadly to encompass all discussion between the Council and its attorney in the meeting in question.
Lastly the OIP basically says "what are we here for if not this kind of determination since our oversight is plainly stated in the law and legislative intent". They say
4. The ICA gravely erred by failing to defer to OIP's interpretation of the breadth of the Sunshine Law's attorney-client executive meeting purpose under the "palpably erroneous" standard and to OIP's UIPA determination under the "abuse of discretion" standard.
One other thing of note is contained in a separate brief – the one filed by the county and upheld by the ICA. It contains a brief description of what went on in ES-177.
OIP's review of the ES[-]177 Minutes indicate[s] that the ongoing investigations discussed were limited to (1) an investigation being conducted by the County of Kauai, Board of Ethics, (2) a police investigation which had been turned over to the County of Kauai Prosecutor and (3) a proposed investigation into the termination of a KPD recruit. It is the opinion of OIP that the matters considered by the Council in ES[-]177 do not constitute "sensitive matters related to public safety or security."
Many believe that what went on was that Rapozo “went off” on Lum, Ching and/or Furtado and aired long held gripes against the department. Some of that was intimated in some of the correspondence between OIP and the county following the OIP’s review of the minutes and determination that they were public records.
It was thought by many political observers that Chair Kaipo Asing then “protected” Rapozo by fighting the release of the minutes, giving him a political Sword of Damocles to hang over Rapozo’s head should Rapozo try to maintain his rebel and maverick image, cultivated during the previous campaign
We’ll try to keep up with the case when and if it is granted review by the Supreme Court of Hawai`i. If anyone wants a copy of both documents- the OIP’s appeal and the ICA ruling- let us know at gotwindmills(at)gmail.com and we’ll get them to you.
-----------
The powers that be will be happy to know that we’ll be taking the occasional day off during the next two months while entertaining ka mo`opuna, who’s here for the summer. We’ll try to make up for it by being twice as caustic when we do post.
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