`OHANA MY ASS: The only times Kaua`i makes enough noise to make it into the Honolulu media- aside from when we bleed- is when something is related to a City and County or statewide issue.
So when Mayor Bernard Carvalho decided to end furloughs this week instead of waiting for the money to pay them and put out a press release about it yesterday, not only did the TV news outlets cover it but the Honolulu newspaper assigned an actual reporter, Rosemarie Bernardo, to do a bylined piece quoting the mayors of other islands regarding their furloughs.
But of course the rest of Bernardo’s article was not just a regurgitation of the press release but it was written as if Carvalho’s claim- that the end of the furloughs was primarily due to cost saving measures and new revenue streams- were the absolute gospel, told without any “according to the county” notations for the various financial and fiscal claims.
The article, like the press release, lists not just tons of additional “fees” but actually lists the savings of the money that would have been paid to the furloughed employees and unfilled positions.
Talk about hubris.
But locally at least there was a clue as to what was really going on.
The un-bylined article in the local newspaper- which usually means it was done by the editor, in this case Nathan Eagle- added one tidbit that wasn’t in the press release that put the lie to Carvalho’s claims, noting in the third paragraph:
As of June 30, the county had a surplus of $43.1 million. The unassigned fund balance increased by $10.3 million, or 31 percent, from the prior year, according to the Comprehensive Annual Financial Report for fiscal year 2010.
Unlike other islands Kaua`i had a huge surplus for this financial year- one way beyond the 20% of the actual budget that is the very high end of recommendations for surplus- and never needed to furlough anyone as noted by at least two councilmember at the time the furloughs were demanded by Carvalho last year.
As anyone who was following the whole subject of furloughs statewide remembers, the state and other three counties actually were in budget binds with huge deficits projected. And during the legislative session the state was thinking about stealing the individual counties’ shares of the state transient accommodations tax (TAT) even though it had evolved into a way for counties to obtain their fair share of monies to pay for the impact of tourism on county facilities and services.
All four mayors were gathered at the legislature to beg for their TAT and, after a closed door meeting, Carvalho- the last holdout- suddenly announced that Kaua`i, like the others, was broke enough that the loss of the $12 million the TAT provided the year before would be catastrophic.
But how could it be catastrophic if they had enough money to pay their employees while everyone else in the state was scrambling on the ground for nickels and dimes?
Thus was born the Kaua`i furloughs. Though they were unneeded and unwanted Carvalho allowed himself to be extorted into employee pay cuts and public inconveniences.
Carvalho could have, of course, continued to challenge the legislature and governor in this game of chicken and demand that we not be penalized for having enough to cover our expenses, maintaining that, like the other islands, we were the responsible ones and deserved our share of the TAT.
But instead he screwed his much ballyhooed “team” of county workers.
With this in mind the press release apparently is anticipating this year’s legislative session saying:
Despite the fact that the county is currently in a financially stable position, Finance Director Wally Rezentes, Jr. cautioned that the county must continue to be conservative... not(ing) that there are a number of factors that could negatively impact the budget for fiscal year 2012 that are not under the control of the county such as the transient accommodations tax.
Together we can... cover the mayor’s big fat political `okole at the expense of our county workers’ pocketbooks and the public’s need for services.
Tuesday, January 11, 2011
Monday, January 10, 2011
AND HILARITY ENSUED
AND HILARITY ENSUED: Boy are we gonna have fun for the next two years if last Wednesday’s first council confab- and the local newspaper’s Leo Azambuja’s coverage of them- is any indication.
The committee meetings’ business included the long-delayed establishment of two sub-committees to review the council rules and look at human resources.
We’ll get to the personnel committee later because we have to lead off with returning babooze-in-chief Mel Rapozo and his first of what promises to be many “open mouth-insert foot” moments followed by an attempt to remove said appendage which only to wedges it in there more securely.
Rapozo was apparently taking his time in trying to make the point that the council seems have trouble following its own rules and was complaining that the rules (actually Rule 6F under Motions) say that “no member may speak longer than five minutes.”
So wise-acre Azambuja wrote:
“If it ain’t broke, don’t fix it,” said Councilman Mel Rapozo, explaining that he feels that the rules are efficient and the problem lies in the council not following its own rules.
Rapozo said the structure of the state Legislature and other county councils is “impressive.”
“We’ve left that, we’ve departed that,” he said. “I’m hoping that we can bring that back, the decorum and the professionalism that this office and these chambers deserve.”
Rapozo, however, ended breaking one of the rules by speaking for seven minutes, right after criticizing council members for breaking the same rule. The rules allow council members to speak for five minutes on a given subject.
Actually an examination of the meeting shows it was six minutes and nine seconds- but who’s counting?... oh yeah, everybody.
Anyway Rapozo decided to respond and wrote in the “comments” section of the newspaper article:
Mr. Azambuja, if you are going to report on the Council meetings, please be fair and accurate. In your article, you stated,
"Rapozo, however, ended breaking one of the rules by speaking for seven minutes, right after criticizing council members for breaking the same rule. The rules allow council members to speak for five minutes on a given subject.
"If you were paying attention, you would have known that the rules allow council members to speak for 10 minutes on any given subject, not five as you reported. This is another example of how your paper misinforms the public at the expense of others. Don't even bother putting in a correction. I think the people have come to learn that the stories in the Garden Island must be validated by independent sources.
Problem is that Azambuja apparently was paying attention- to Rapozo. The words “10 minutes” never left Rapozo’s mouth while “five minutes” was repeated over and over.
Then, 52 minutes after leaving his comment and after a couple of other comments expressing confusion- and perhaps after remembering what he had actually said at the meeting- Rapozo attempted to explain that:
The rule states that council members have two (2) opportunities to speak, at five (5) minutes each. However, the Chair can allow the member to use all 10 minutes during one presentation. Thanks for the question. Great observation. If anyone wants a copy of our Council Rules, email me at mfrapozo (at) kauai.gov and I will email you a copy of them. Thanks again.
The problem for Mr. “if it ain’t broke don’t fix it” is that, while the two opportunities at five minutes is sort of in the rules- they mention two opportunities but don’t say “at five minutes apiece”- the use all 10 minutes at once is not.
The actual Kauai County Council Rules state that:
No member may speak longer than five minutes, nor may a member speak more than twice on the same question without leave of the Presiding Officer, subject to an appeal to the body, unless the member is the maker of the motion or sponsor of the matter pending, in which case the member may speak in reply, but not until every other member choosing to speak has spoken.
Not only doesn’t it say that you can combine them but it doesn’t really say how long any second chance might be- an indication that the rule needs to be clarified and thus is, in fact “broken.”
The “custom” of allowing members of the public to take their two chances of three minutes as one six minute chance to speak (but only if there are few others waiting) is not a part of the rules but was a practice that Chair Kaipo Asing instituted a few years back.
Rapozo also did explain not when or how, if the five minute rule had “never been enforced” as he said, the chair might have employed this rule that doesn’t exist and was never used.
But Rapozo was adamant at the meeting that the council follow the rules- especially the “point of order” rule.
But it became apparent that Rapozo has the same misconception as many others as to what “point of order” really is or when it can be used to interrupt the proceedings.
When it was Councilmember JoAnn Yukimura’s turn to talk she mentioned that the rules call for a majority of all members to vote for something in order for it to be considered passed. But then she added something about how that should have been the case in the recent controversy over the evaluation and subsequent pay raise for the county clerk, which was done unilaterally by Asing without council approval.
That caused Rapozo to blow his top and shout “that’s a point of order” saying that “we’re talking about a resolution” implying he thought it was off subject.
But in order to call a “point of order” it must relate to a matter of parliamentary “order”- as in Roberts Rules of Order.
It means that the person is alleging that the chair or parliamentarian has erred in applying something contained in the parliamentary guidebook. It not to be used for instances when you disagree with the speaker or if you think it’s off subject- the latter being a matter of the Sunshine Law which prohibits councilmembers from speaking on matters not on the agenda... something that’s usually a judgment call of the chair.
As a matter of fact, it is a violation of “order” to yell “point of order” if, in fact, your objection is not a “point of order.”
But Rapozo wasn’t the only one that was in rare form.
Perhaps the most bizarre statement of the day came from Chair Jay Furfaro regarding finally getting council documents posted on the county’s web site, especially the bills, resolutions and communications- along with the appropriate paperwork- which now requires a weekly trip to Lihu`e to acquire... in hard copy form.
Somehow, even though the material is routinely compiled and sits in a folder behind the counter at council services- and even though, according to council services staff their current “all the bells and whistles” copying machine can scan and post documents on-line automatically, Furfaro said:
“We will have a new position, especially as it deals with the effort we’re putting into documents getting onto the web for pre-meeting information to the public. That would be a new position.”
How the heck this takes a whole new position is beyond us. The question has to be asked if this is just a big waste of money in order to justify the literally years it’s taken to get this simple matter accomplished- a justification that has been based on how hard it is to do, without detailed explanation.
The best we’ve gotten is that they must make sure that they are indeed “public” documents before posting them. But they must do the same thing now when they hand them out over the counter.
If they really think it’s going to take that much staff time perhaps it is appropriate to have the new Human Resources (HR) Subcommittee look into policy and practices even though three councilmembers- Rapozo, Derek Kawakami and another whom we couldn’t identify- objected to an amendment adding that task to the subcommittee’s charge on Wednesday.
The biggest problem with the HR subcommittee is that apparently they won’t be looking into the matter of staff allocation and the current set-up that provides zero staff for individual members and rather gives the chair total control over allotments of staff time.
It promises to be a great year; we’re planning on adding a laugh track.
The committee meetings’ business included the long-delayed establishment of two sub-committees to review the council rules and look at human resources.
We’ll get to the personnel committee later because we have to lead off with returning babooze-in-chief Mel Rapozo and his first of what promises to be many “open mouth-insert foot” moments followed by an attempt to remove said appendage which only to wedges it in there more securely.
Rapozo was apparently taking his time in trying to make the point that the council seems have trouble following its own rules and was complaining that the rules (actually Rule 6F under Motions) say that “no member may speak longer than five minutes.”
So wise-acre Azambuja wrote:
“If it ain’t broke, don’t fix it,” said Councilman Mel Rapozo, explaining that he feels that the rules are efficient and the problem lies in the council not following its own rules.
Rapozo said the structure of the state Legislature and other county councils is “impressive.”
“We’ve left that, we’ve departed that,” he said. “I’m hoping that we can bring that back, the decorum and the professionalism that this office and these chambers deserve.”
Rapozo, however, ended breaking one of the rules by speaking for seven minutes, right after criticizing council members for breaking the same rule. The rules allow council members to speak for five minutes on a given subject.
Actually an examination of the meeting shows it was six minutes and nine seconds- but who’s counting?... oh yeah, everybody.
Anyway Rapozo decided to respond and wrote in the “comments” section of the newspaper article:
Mr. Azambuja, if you are going to report on the Council meetings, please be fair and accurate. In your article, you stated,
"Rapozo, however, ended breaking one of the rules by speaking for seven minutes, right after criticizing council members for breaking the same rule. The rules allow council members to speak for five minutes on a given subject.
"If you were paying attention, you would have known that the rules allow council members to speak for 10 minutes on any given subject, not five as you reported. This is another example of how your paper misinforms the public at the expense of others. Don't even bother putting in a correction. I think the people have come to learn that the stories in the Garden Island must be validated by independent sources.
Problem is that Azambuja apparently was paying attention- to Rapozo. The words “10 minutes” never left Rapozo’s mouth while “five minutes” was repeated over and over.
Then, 52 minutes after leaving his comment and after a couple of other comments expressing confusion- and perhaps after remembering what he had actually said at the meeting- Rapozo attempted to explain that:
The rule states that council members have two (2) opportunities to speak, at five (5) minutes each. However, the Chair can allow the member to use all 10 minutes during one presentation. Thanks for the question. Great observation. If anyone wants a copy of our Council Rules, email me at mfrapozo (at) kauai.gov and I will email you a copy of them. Thanks again.
The problem for Mr. “if it ain’t broke don’t fix it” is that, while the two opportunities at five minutes is sort of in the rules- they mention two opportunities but don’t say “at five minutes apiece”- the use all 10 minutes at once is not.
The actual Kauai County Council Rules state that:
No member may speak longer than five minutes, nor may a member speak more than twice on the same question without leave of the Presiding Officer, subject to an appeal to the body, unless the member is the maker of the motion or sponsor of the matter pending, in which case the member may speak in reply, but not until every other member choosing to speak has spoken.
Not only doesn’t it say that you can combine them but it doesn’t really say how long any second chance might be- an indication that the rule needs to be clarified and thus is, in fact “broken.”
The “custom” of allowing members of the public to take their two chances of three minutes as one six minute chance to speak (but only if there are few others waiting) is not a part of the rules but was a practice that Chair Kaipo Asing instituted a few years back.
Rapozo also did explain not when or how, if the five minute rule had “never been enforced” as he said, the chair might have employed this rule that doesn’t exist and was never used.
But Rapozo was adamant at the meeting that the council follow the rules- especially the “point of order” rule.
But it became apparent that Rapozo has the same misconception as many others as to what “point of order” really is or when it can be used to interrupt the proceedings.
When it was Councilmember JoAnn Yukimura’s turn to talk she mentioned that the rules call for a majority of all members to vote for something in order for it to be considered passed. But then she added something about how that should have been the case in the recent controversy over the evaluation and subsequent pay raise for the county clerk, which was done unilaterally by Asing without council approval.
That caused Rapozo to blow his top and shout “that’s a point of order” saying that “we’re talking about a resolution” implying he thought it was off subject.
But in order to call a “point of order” it must relate to a matter of parliamentary “order”- as in Roberts Rules of Order.
It means that the person is alleging that the chair or parliamentarian has erred in applying something contained in the parliamentary guidebook. It not to be used for instances when you disagree with the speaker or if you think it’s off subject- the latter being a matter of the Sunshine Law which prohibits councilmembers from speaking on matters not on the agenda... something that’s usually a judgment call of the chair.
As a matter of fact, it is a violation of “order” to yell “point of order” if, in fact, your objection is not a “point of order.”
But Rapozo wasn’t the only one that was in rare form.
Perhaps the most bizarre statement of the day came from Chair Jay Furfaro regarding finally getting council documents posted on the county’s web site, especially the bills, resolutions and communications- along with the appropriate paperwork- which now requires a weekly trip to Lihu`e to acquire... in hard copy form.
Somehow, even though the material is routinely compiled and sits in a folder behind the counter at council services- and even though, according to council services staff their current “all the bells and whistles” copying machine can scan and post documents on-line automatically, Furfaro said:
“We will have a new position, especially as it deals with the effort we’re putting into documents getting onto the web for pre-meeting information to the public. That would be a new position.”
How the heck this takes a whole new position is beyond us. The question has to be asked if this is just a big waste of money in order to justify the literally years it’s taken to get this simple matter accomplished- a justification that has been based on how hard it is to do, without detailed explanation.
The best we’ve gotten is that they must make sure that they are indeed “public” documents before posting them. But they must do the same thing now when they hand them out over the counter.
If they really think it’s going to take that much staff time perhaps it is appropriate to have the new Human Resources (HR) Subcommittee look into policy and practices even though three councilmembers- Rapozo, Derek Kawakami and another whom we couldn’t identify- objected to an amendment adding that task to the subcommittee’s charge on Wednesday.
The biggest problem with the HR subcommittee is that apparently they won’t be looking into the matter of staff allocation and the current set-up that provides zero staff for individual members and rather gives the chair total control over allotments of staff time.
It promises to be a great year; we’re planning on adding a laugh track.
Friday, January 7, 2011
(PNN) OIP RULES FURFARO MEMO DISCUSSING DRAFT BILL NOT ILLEGAL ONLY BECAUSE IT WAS NEVER SENT
OIP RULES FURFARO MEMO DISCUSSING DRAFT BILL NOT ILLEGAL ONLY BECAUSE IT WAS NEVER SENT
(PNN) -- The Office of Information Practices has ruled that Kaua`i Council Chair Jay Furfaro did not violate the Sunshine Law because, according to County Clerk Peter Nakamura, a letter to fellow councilpersons discussing and soliciting support for a draft bill was never sent.
But OIP Acting Director Cathy L. Takase said that if Furfaro’s letter “had been circulated to all members, it would constitute a discussion of the Board’s ‘official business’ in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill.”
The bill- one that would have allowed Transient Vacation Rentals (TVRs) on agricultural lands via “non-enforcement agreements”- and cover letter in question first appeared in a since-removed blog post by local real estate agent Ronnie Margolis in December of 2008.
When PNN published the letter with allegations of a Sunshine Law violation on Friday, December 19, 2008 the OIP opened a case (S INVES-P 09-5) and in January sent a letter asking Furfaro for a response.
But instead of Furfaro responding personally, in February Nakamura wrote a letter defending Furfaro claiming that the letter in question was never sent to councilmembers. The letter also included a defense saying that even if he did send the letter the contents weren’t in violation of the law.
The OIP’s “Memorandum Opinion,” addressed to PNN’s Editor/Publisher/Reporter Andy Parx, does not indicate whether the councilpersons who were listed as recipients of the letter were asked if they received it.
The opinion begins by noting the “Request for Investigation” saying
Requester asked for an investigation into whether a violation of the Sunshine Law occurred based upon the distribution of a letter dated November 28, 2008 from then Vice Chair Jay Furfaro to the remaining members of the Kauai County Council concerning a bill proposing amendments to Kauai County Ordinance No. 864.
It then states the simple “Opinion” stating that
Based upon representations made on behalf of Vice Chair Furfaro and the Council, OIP finds that no violation occurred.
The “Statement of Reasons for Opinion” goes on to say:
In response to OIP’s request, Kauai County Clerk Peter Nakamura provided a response to Requester’s complaint on behalf of Vice Chair Furfaro and the Council. Specifically, Mr. Nakamura stated that the November 28th letter was a draft letter that was never signed nor circulated to the members. Mr. Nakamura further states that, as evidenced by your complaint, this draft transmittal was somehow obtained by the public. We note that the copy you provided to OIP is unsigned, which is consistent with this statement. Accordingly, we find no substantiation for your complaint of violation.
It is interesting to note that the OIP did not address an issue raised by PNN regarding the use of the media, including on-line posting, to attempt to circumvent the prohibitions in the Sunshine Law. The representation that the “draft transmittal was somehow (emphasis added) obtained by the public” though it is consistent with the fact that Margolis never stated unequivocally from whom he obtained the bill and letter.
As to who actually did receive the letter, the opinion says that
Mr. Nakamura did state that the Council Chair alone was provided a copy of the draft “transmittal” letter and draft bill, in accordance with the Council’s standing practice, to consider approval for inclusion on the Council’s meeting agenda.
Disclosure to the Chair alone would not violate the Sunshine Law because discussion between two Council members is allowed under the two-member permitted interaction. See HRS § 92-2.5(a).
But then the memo gets to the heart of the matter.
Furfaro has stated that he has been engaged with the OIP over the past two years- and says he spent $1700 in the process- trying to establish a defense basically saying that even if it was sent it didn’t violate the law.
But the OIP disagreed setting a precedent and sending a message to Furfaro that this kind of communication is illegal.
Takase wrote:
We note, however, that given the content of the ‘transmittal” letter, we believe that if it had been circulated to all members, it would constitute a discussion of the Board’s ‘official business” in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill. It specifically discusses the content of the draft bill and reasons why it should be adopted. A member’s expression of his or her views to other members on “official business” constitutes a prohibited discussion outside of a meeting regardless of whether the other members are physically present to hear an oral communication of those views or receive those views through other means, including through written correspondence. OIP Op. Ltr. No. 04-0 1 (position statements circulated and signed by members constituted discussions and voting outside of a meeting in violation of the Sunshine Law); HRS § 92-5(b)(no electronic communication shall be used to circumvent the spirit or requirements of this part to deliberate upon board business).
The opinion concludes by describing the “Right to Bring Suit to Enforce Sunshine Law and to Void Board Action” saying:
Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. HRS § 92-12. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.
Where a final action of a board was taken in violation of the open meeting and notice requirements of the Sunshine Law, that action may be voided by the court. HRS § 92-11. A suit to void any final action must be commenced within ninety days of the action.
The original letter was addressed to the following councilmembers :
Mel Rapozo
Tim Bynum
Ronald D. Kouchi
Shaylene Iseri-Carvalho
Daryl W. Kaneshiro
Joann A. Yukimura
Thus far none have confirmed or denied receiving Furfaro’s cover letter. PNN plans no court action unless one or more of them come forward to say he or she received the letter from Furfaro.
(PNN) -- The Office of Information Practices has ruled that Kaua`i Council Chair Jay Furfaro did not violate the Sunshine Law because, according to County Clerk Peter Nakamura, a letter to fellow councilpersons discussing and soliciting support for a draft bill was never sent.
But OIP Acting Director Cathy L. Takase said that if Furfaro’s letter “had been circulated to all members, it would constitute a discussion of the Board’s ‘official business’ in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill.”
The bill- one that would have allowed Transient Vacation Rentals (TVRs) on agricultural lands via “non-enforcement agreements”- and cover letter in question first appeared in a since-removed blog post by local real estate agent Ronnie Margolis in December of 2008.
When PNN published the letter with allegations of a Sunshine Law violation on Friday, December 19, 2008 the OIP opened a case (S INVES-P 09-5) and in January sent a letter asking Furfaro for a response.
But instead of Furfaro responding personally, in February Nakamura wrote a letter defending Furfaro claiming that the letter in question was never sent to councilmembers. The letter also included a defense saying that even if he did send the letter the contents weren’t in violation of the law.
The OIP’s “Memorandum Opinion,” addressed to PNN’s Editor/Publisher/Reporter Andy Parx, does not indicate whether the councilpersons who were listed as recipients of the letter were asked if they received it.
The opinion begins by noting the “Request for Investigation” saying
Requester asked for an investigation into whether a violation of the Sunshine Law occurred based upon the distribution of a letter dated November 28, 2008 from then Vice Chair Jay Furfaro to the remaining members of the Kauai County Council concerning a bill proposing amendments to Kauai County Ordinance No. 864.
It then states the simple “Opinion” stating that
Based upon representations made on behalf of Vice Chair Furfaro and the Council, OIP finds that no violation occurred.
The “Statement of Reasons for Opinion” goes on to say:
In response to OIP’s request, Kauai County Clerk Peter Nakamura provided a response to Requester’s complaint on behalf of Vice Chair Furfaro and the Council. Specifically, Mr. Nakamura stated that the November 28th letter was a draft letter that was never signed nor circulated to the members. Mr. Nakamura further states that, as evidenced by your complaint, this draft transmittal was somehow obtained by the public. We note that the copy you provided to OIP is unsigned, which is consistent with this statement. Accordingly, we find no substantiation for your complaint of violation.
It is interesting to note that the OIP did not address an issue raised by PNN regarding the use of the media, including on-line posting, to attempt to circumvent the prohibitions in the Sunshine Law. The representation that the “draft transmittal was somehow (emphasis added) obtained by the public” though it is consistent with the fact that Margolis never stated unequivocally from whom he obtained the bill and letter.
As to who actually did receive the letter, the opinion says that
Mr. Nakamura did state that the Council Chair alone was provided a copy of the draft “transmittal” letter and draft bill, in accordance with the Council’s standing practice, to consider approval for inclusion on the Council’s meeting agenda.
Disclosure to the Chair alone would not violate the Sunshine Law because discussion between two Council members is allowed under the two-member permitted interaction. See HRS § 92-2.5(a).
But then the memo gets to the heart of the matter.
Furfaro has stated that he has been engaged with the OIP over the past two years- and says he spent $1700 in the process- trying to establish a defense basically saying that even if it was sent it didn’t violate the law.
But the OIP disagreed setting a precedent and sending a message to Furfaro that this kind of communication is illegal.
Takase wrote:
We note, however, that given the content of the ‘transmittal” letter, we believe that if it had been circulated to all members, it would constitute a discussion of the Board’s ‘official business” in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill. It specifically discusses the content of the draft bill and reasons why it should be adopted. A member’s expression of his or her views to other members on “official business” constitutes a prohibited discussion outside of a meeting regardless of whether the other members are physically present to hear an oral communication of those views or receive those views through other means, including through written correspondence. OIP Op. Ltr. No. 04-0 1 (position statements circulated and signed by members constituted discussions and voting outside of a meeting in violation of the Sunshine Law); HRS § 92-5(b)(no electronic communication shall be used to circumvent the spirit or requirements of this part to deliberate upon board business).
The opinion concludes by describing the “Right to Bring Suit to Enforce Sunshine Law and to Void Board Action” saying:
Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. HRS § 92-12. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.
Where a final action of a board was taken in violation of the open meeting and notice requirements of the Sunshine Law, that action may be voided by the court. HRS § 92-11. A suit to void any final action must be commenced within ninety days of the action.
The original letter was addressed to the following councilmembers :
Mel Rapozo
Tim Bynum
Ronald D. Kouchi
Shaylene Iseri-Carvalho
Daryl W. Kaneshiro
Joann A. Yukimura
Thus far none have confirmed or denied receiving Furfaro’s cover letter. PNN plans no court action unless one or more of them come forward to say he or she received the letter from Furfaro.
Thursday, January 6, 2011
AND THE WALLS CAME TUMBLIN’ DOWN
AND THE WALLS CAME TUMBLIN’ DOWN: It was a good news/really bad news moment when the Honolulu-based, on-line news venture Civil Beat launched a while back.
Many were excited over the prospect of whatever each envisioned was needed until we learned that it was going to be, in the words of Disappeared News’ Larry Geller, a “gated community” and would cost $240 a year to enter.
Worse yet, for Kaua`i at least, it meant losing ace reporter Big Mike Levine who moved on to become one of their “reporter-hosts”.
But we heard from Mike yesterday that there are going to be “some changes to civilbeat.com” and that “(e)verything we've been working on is now free for occasional readers.”
No telling what “occasional readers” means but we were able to read stories yesterday and again today.
We wonder what those who paid for a year are thinking... probably much the same thing we did when we got to Woodstock after having paid 18, 1969 dollars for tickets and found the fences on the ground.
Many have wondered how they were doing, especially since they’ve been tight-lipped about how many subscribers they have. And things might have gone from bad to worse recently with the blow back against CEO, Publisher and Co-founder Pierre Omidyar’s other venture, “Pay Pals,” after they banned Wikileaks from using the service- causing at least one notable cancelled subscription.
But really the prime subject of Mike’s letter was to point us to an article by one of his fellow “host-reporters” Adrienne LaFrance headlined “Obama's Winter White House an Illegal Rental”
According to her story:
Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.
Although the owner claims he got around the law by leaving a 30-day window between rentals, the
explanation is one that's commonly offered, but that still represents an illegal renting practice...
"Maybe it's that the people are circumventing the law or thinking, 'Oh, I'll only rent it to one person in a (30-day) period," said Andrew Malahoff, a spokesman for Honolulu City Council member Ikaika Anderson, who chairs the city's Zoning Committee. "They say, 'Even though they're only going to stay there for seven days, I'll charge them for (30) days, and prorate that.' But as far as we know, that is also not legal. You will not rent for a period of less than 30 days. That's what's in the land-use ordinance. It's not just about multiple rental parties, it's the period of days."
It’s hard to see how, if the owner just rented it out for 30 days and the vacationer decided to stay there for only two weeks it could be illegal. But then again we’re not really familiar with all of the planning and zoning laws in Honolulu.
But one thing we are familiar with that LaFrance is apparently unaware of- something that occurred to us years ago when we first heard of the President’s beach house rental- is the fact that the Department of Land and Natural Resources’ (DLNR) Division of Conservation and Resource Enforcement (DOCARE) has cracked down on vacation rentals in the state conservation district (CD) sending “cease and desist” letters to those operation in Wainiha on the North Shore of Kaua`i and in Kane`ohe on O`ahu- not far from the president’s rental.
According to an April 2007 article in the local Kaua`i newspaper
The state Department of Land and Natural Resources has issued notices to 16 property owners in Ha‘ena to halt alleged unauthorized use of multi-million-dollar homes as vacation rentals.
Most of the 16 homes are on makai, or on the ocean side, of Kuhio Highway, from the YMCA’s Camp Naue to Limahuli Stream. Most are clustered around Makua Beach, also known as Tunnels.
A condition in the state Conservation District Use Application, which a property owner secures before building in the state’s conservation area, stipulates a single-family home cannot be used for rental or any other commercial purposes, Peter Young, chairman of the Board of Land and Natural Resources, said in a March 23 letter to alleged violators.
In one case, the cease-and-desist order could force the owner to sell a property worth millions, and may be the scenario facing other supposed violators as well, said Gary Stice, a Kaneohe, O`ahu resident who received one of the letters.
At the time of the letters many of the operators shut down their rentals but according to at least one anti-vacation rental activist many have reopened and DOCARE has apparently dropped the ball.
It also brings up the question of whether the house has a Shoreline Management Area (SMA) permit- which generally include use descriptions- for a vacation rental. But that would also be a City and County of Honolulu issue.
So far the report hasn’t gotten any press either statewide or nationally. But whenever the president is involved, stories including the word “illegal” tend to grow virally.
And the vacation rental issue could certainly use a little viral publicity considering the disease they cause in otherwise quiet residential neighborhoods.
Many were excited over the prospect of whatever each envisioned was needed until we learned that it was going to be, in the words of Disappeared News’ Larry Geller, a “gated community” and would cost $240 a year to enter.
Worse yet, for Kaua`i at least, it meant losing ace reporter Big Mike Levine who moved on to become one of their “reporter-hosts”.
But we heard from Mike yesterday that there are going to be “some changes to civilbeat.com” and that “(e)verything we've been working on is now free for occasional readers.”
No telling what “occasional readers” means but we were able to read stories yesterday and again today.
We wonder what those who paid for a year are thinking... probably much the same thing we did when we got to Woodstock after having paid 18, 1969 dollars for tickets and found the fences on the ground.
Many have wondered how they were doing, especially since they’ve been tight-lipped about how many subscribers they have. And things might have gone from bad to worse recently with the blow back against CEO, Publisher and Co-founder Pierre Omidyar’s other venture, “Pay Pals,” after they banned Wikileaks from using the service- causing at least one notable cancelled subscription.
But really the prime subject of Mike’s letter was to point us to an article by one of his fellow “host-reporters” Adrienne LaFrance headlined “Obama's Winter White House an Illegal Rental”
According to her story:
Obama did not break the law by staying at the house, but the property owner who rented his house to the Obamas does not have the permit that would allow a stay of fewer than 30 days.
Although the owner claims he got around the law by leaving a 30-day window between rentals, the
explanation is one that's commonly offered, but that still represents an illegal renting practice...
"Maybe it's that the people are circumventing the law or thinking, 'Oh, I'll only rent it to one person in a (30-day) period," said Andrew Malahoff, a spokesman for Honolulu City Council member Ikaika Anderson, who chairs the city's Zoning Committee. "They say, 'Even though they're only going to stay there for seven days, I'll charge them for (30) days, and prorate that.' But as far as we know, that is also not legal. You will not rent for a period of less than 30 days. That's what's in the land-use ordinance. It's not just about multiple rental parties, it's the period of days."
It’s hard to see how, if the owner just rented it out for 30 days and the vacationer decided to stay there for only two weeks it could be illegal. But then again we’re not really familiar with all of the planning and zoning laws in Honolulu.
But one thing we are familiar with that LaFrance is apparently unaware of- something that occurred to us years ago when we first heard of the President’s beach house rental- is the fact that the Department of Land and Natural Resources’ (DLNR) Division of Conservation and Resource Enforcement (DOCARE) has cracked down on vacation rentals in the state conservation district (CD) sending “cease and desist” letters to those operation in Wainiha on the North Shore of Kaua`i and in Kane`ohe on O`ahu- not far from the president’s rental.
According to an April 2007 article in the local Kaua`i newspaper
The state Department of Land and Natural Resources has issued notices to 16 property owners in Ha‘ena to halt alleged unauthorized use of multi-million-dollar homes as vacation rentals.
Most of the 16 homes are on makai, or on the ocean side, of Kuhio Highway, from the YMCA’s Camp Naue to Limahuli Stream. Most are clustered around Makua Beach, also known as Tunnels.
A condition in the state Conservation District Use Application, which a property owner secures before building in the state’s conservation area, stipulates a single-family home cannot be used for rental or any other commercial purposes, Peter Young, chairman of the Board of Land and Natural Resources, said in a March 23 letter to alleged violators.
In one case, the cease-and-desist order could force the owner to sell a property worth millions, and may be the scenario facing other supposed violators as well, said Gary Stice, a Kaneohe, O`ahu resident who received one of the letters.
At the time of the letters many of the operators shut down their rentals but according to at least one anti-vacation rental activist many have reopened and DOCARE has apparently dropped the ball.
It also brings up the question of whether the house has a Shoreline Management Area (SMA) permit- which generally include use descriptions- for a vacation rental. But that would also be a City and County of Honolulu issue.
So far the report hasn’t gotten any press either statewide or nationally. But whenever the president is involved, stories including the word “illegal” tend to grow virally.
And the vacation rental issue could certainly use a little viral publicity considering the disease they cause in otherwise quiet residential neighborhoods.
Wednesday, January 5, 2011
OPAQUE- AND PROUD OF IT
OPAQUE- AND PROUD OF IT: We don’t know what we’d do for source material if it wasn’t for the local newspaper’s now ubiquitous Leo Azambuja whose reports today added more confusion to that caused by his recent muddled coverage.
Today was a two-fer with the primary article on the preliminary hearing in the Anahola murder case that he apparently attended, missing facts and even quotes that somehow the Honolulu Advertiser “staff” bylined article- apparently written from their offices- contain regarding future witnesses yet to testify in the continued hearing.
And when the secondary article, based on an interview with the victim’s father, gets to the meat of the article- a description of what allegedly actually occurred- it’s completely unattributed. Though many may assume it was part of the narrative from the father assumptions can always get you in trouble.
But although it’s easy to blame the newspaper and the Azambuja’s amateurism for the community’s “what the heck is going on here?” attitude toward the Anahola murder and other cases, people's ire should really be directed toward Mayor Bernard Carvalho.
We are in possession of an email from hizonnah to a constituent who, like the local newspaper and many others in the community (us included), has been focused on trying to get Kaua`i Police Department (KPD) its own public information officer (PIO) like any normal police department.
Although he has been tight lipped on the subject until now, in the email Carvalho out and out rejects the idea in favor of the current practice of controlling every bit if information that comes out of the administration through his “Communications Team”.
The email, in full, reads:
I appreciate your continued concern and support for the Kaua`i Police Department. I can assure you that the present arrangement provides the Kaua`i Police Department 24/7 access to our Communications Team, including support at the scene of an incident if that is requested by KPD. I would challenge anyone to come up with an instance where a call from KPD to one of our Communications Team members was not immediately picked up or returned within minutes of the call. This happens in the evening, on weekends, holidays and furlough days.
Information received from KPD is turned around by members of our communications team quickly in the form of a draft for review by KPD personnel. There is never a release, quote or other information relating to KPD that is not first scrutinized and approved by KPD senior personnel before being released to the media – including the quote that you reference in your email.
Again, I appreciate your concern and can only assure you that KPD is well-served by three competent, experienced, and well-trained individuals who are fully committed to serving the needs of our police department as well as satisfy the public’s need to know to the greatest extent possible.
Mahalo,
Mayor Carvalho
As most know, Carvalho’s “team” is headed by political operative Beth Tokioka who has tightly controlled the messages from the last three administrations.
It’s not about the timeliness of what is released. It’s about the amount and type and general lack of information the public receives about crimes committed on the island.
Carvalho’s rampant paranoia has not only resulted in the lack of information that normally would be released by a police department to calm the citizenry but it flouts the intent of having a police force that is supposed to be out of the normal political control of the administration- as evidenced by the fact that the Kaua`i Police Commission is solely responsible for oversight of KPD.
It’s all part of his petty-vindictive, politically-motivated, commend-and-control style of management that has become the most insulated and corrupt Kaua`i administration in memory- and that’s saying a lot.
The local newspaper can take their share of the blame for less than coherent reporting. But unless and until KPD has its own professional PIO within its ranks Kaua`i will continue to get the mushroom treatment by being kept in the dark and fed bullsh*t.
-------
Clarification: Although we can’t see how, a few people somehow got the impression yesterday that we are a part of the new “For Kaua`i” newspaper. We have not been asked and so far, are not. Sorry if we some how caused any confusion.
And the link we provided didn’t work- the correct one is here.
Today was a two-fer with the primary article on the preliminary hearing in the Anahola murder case that he apparently attended, missing facts and even quotes that somehow the Honolulu Advertiser “staff” bylined article- apparently written from their offices- contain regarding future witnesses yet to testify in the continued hearing.
And when the secondary article, based on an interview with the victim’s father, gets to the meat of the article- a description of what allegedly actually occurred- it’s completely unattributed. Though many may assume it was part of the narrative from the father assumptions can always get you in trouble.
But although it’s easy to blame the newspaper and the Azambuja’s amateurism for the community’s “what the heck is going on here?” attitude toward the Anahola murder and other cases, people's ire should really be directed toward Mayor Bernard Carvalho.
We are in possession of an email from hizonnah to a constituent who, like the local newspaper and many others in the community (us included), has been focused on trying to get Kaua`i Police Department (KPD) its own public information officer (PIO) like any normal police department.
Although he has been tight lipped on the subject until now, in the email Carvalho out and out rejects the idea in favor of the current practice of controlling every bit if information that comes out of the administration through his “Communications Team”.
The email, in full, reads:
I appreciate your continued concern and support for the Kaua`i Police Department. I can assure you that the present arrangement provides the Kaua`i Police Department 24/7 access to our Communications Team, including support at the scene of an incident if that is requested by KPD. I would challenge anyone to come up with an instance where a call from KPD to one of our Communications Team members was not immediately picked up or returned within minutes of the call. This happens in the evening, on weekends, holidays and furlough days.
Information received from KPD is turned around by members of our communications team quickly in the form of a draft for review by KPD personnel. There is never a release, quote or other information relating to KPD that is not first scrutinized and approved by KPD senior personnel before being released to the media – including the quote that you reference in your email.
Again, I appreciate your concern and can only assure you that KPD is well-served by three competent, experienced, and well-trained individuals who are fully committed to serving the needs of our police department as well as satisfy the public’s need to know to the greatest extent possible.
Mahalo,
Mayor Carvalho
As most know, Carvalho’s “team” is headed by political operative Beth Tokioka who has tightly controlled the messages from the last three administrations.
It’s not about the timeliness of what is released. It’s about the amount and type and general lack of information the public receives about crimes committed on the island.
Carvalho’s rampant paranoia has not only resulted in the lack of information that normally would be released by a police department to calm the citizenry but it flouts the intent of having a police force that is supposed to be out of the normal political control of the administration- as evidenced by the fact that the Kaua`i Police Commission is solely responsible for oversight of KPD.
It’s all part of his petty-vindictive, politically-motivated, commend-and-control style of management that has become the most insulated and corrupt Kaua`i administration in memory- and that’s saying a lot.
The local newspaper can take their share of the blame for less than coherent reporting. But unless and until KPD has its own professional PIO within its ranks Kaua`i will continue to get the mushroom treatment by being kept in the dark and fed bullsh*t.
-------
Clarification: Although we can’t see how, a few people somehow got the impression yesterday that we are a part of the new “For Kaua`i” newspaper. We have not been asked and so far, are not. Sorry if we some how caused any confusion.
And the link we provided didn’t work- the correct one is here.
Tuesday, January 4, 2011
WATCH OUT WHAT YOU ASK FOR
WATCH OUT WHAT YOU ASK FOR: It seems a week doesn’t go by when we don’t hear words to the effect that Kaua`i needs a new newspaper.
And although it might not be exactly what they are talking about it’s nonetheless nice to learn from Joan Conrow- one of the reporters- that
there’s a brand new newspaper in town, called For Kauai. It has a print edition that initially will come out monthly, as well as an online version that will be updated regularly. The paper is still taking shape, in terms of content, but with reporting veterans like Anne O’Malley, Jan TenBruggencate and me contributing the articles, it promises to be a bit more solid than the competition.
And make no mistake, For Kauai is definitely out to compete with both TGI and MidWeek. It’s a freshened up, newsier, less fluffy reincarnation of Kauai People, the hugely successful weekly newspaper that made a lot of money for its previous owner, The Honolulu Advertiser.
There’s still no word from Joan on distribution but we must assume that it will be a “TMC” type publication- the acronym for “total market circulation,”
The concept, devised in the later part of the 20th century, is that since advertisers make up the bulk of revenue for a newspaper and they want their ads in the hands of as many people as possible, the price of the paper is a deterrent to doing that.
Though the actual price of a newspaper has become a more important revenue source in the past decade or so, it’s traditionally been a “nuisance fee” designed to give the illusion of value to make sure that people didn’t just pick one up and throw it away without reading it.
But the TCM concept was that the cost of the newsprint and the lack of purchase price can be made up because if advertisers were convinced you could put more eyeballs on their ads they would flock to you. Not only do you get more advertisers with bigger circulation but you can charge more for each ad.
The TCM wars on Kaua`i started with The Kaua`i Times (TKT) which actually tried to compete with the local newspaper of record with news, albeit slanted- originally to reverse the Nukoli`i vote that first banned the resort that sits all alone between Hanama`ulu and the golf course and later to support the “north shore boaters.”
Though in big cities the distribution usually takes place via “free” news racks, in smaller more rural areas there are two preferred methods- by mail or by physical distribution to people’s driveways.
The downside of mail is two fold and both have to do with cost. First of all there is a postal definition of a newspaper that says that it must have a certain percentage of actual news versus advertising. But since cheap content has always been out there the big one is that a certain percentage of the people receiving it must actually request it.
Some kama`aina will remember when TKT hired a clipboard bearing army who invaded post offices trying to get people to sign up for the paper. And few on-line readers of local publications can miss those banner ads asking for you to sign up so you can “continue to receive” Mid-Week, which has gobbled up the ads from the now defunct Kaua`i People and stolen two advertisers- Times Supermarket and Foodland- from the local newspaper-sponsored, driveway-delivered “Island Shopper”- although Foodland has been going with both since KP’s demise.
And make no mistake- those “ad supplements” are where the big bucks are. They pay for the lion’s share of production costs with the smaller ads providing the rest... and the profit.
So far an examination of their “on-line” edition shows “For Kaua`i” to be just more fluff- albeit the kind that apparently lots of people seem to like, with profiles of local artists and businesses.
The one newsy entry- if you scroll down past the fluff- is Conrow’s “overview” of the county council, although a read reveals simply each one’s broad “priorities” rather than anything earth-shaking.
We wish them luck- we’re not out to break anyone’s rice bowl. But with the Chamber of Commerce on the war path lately we’ll have to wait to see the “guts” of the new guy on the block.
And although it might not be exactly what they are talking about it’s nonetheless nice to learn from Joan Conrow- one of the reporters- that
there’s a brand new newspaper in town, called For Kauai. It has a print edition that initially will come out monthly, as well as an online version that will be updated regularly. The paper is still taking shape, in terms of content, but with reporting veterans like Anne O’Malley, Jan TenBruggencate and me contributing the articles, it promises to be a bit more solid than the competition.
And make no mistake, For Kauai is definitely out to compete with both TGI and MidWeek. It’s a freshened up, newsier, less fluffy reincarnation of Kauai People, the hugely successful weekly newspaper that made a lot of money for its previous owner, The Honolulu Advertiser.
There’s still no word from Joan on distribution but we must assume that it will be a “TMC” type publication- the acronym for “total market circulation,”
The concept, devised in the later part of the 20th century, is that since advertisers make up the bulk of revenue for a newspaper and they want their ads in the hands of as many people as possible, the price of the paper is a deterrent to doing that.
Though the actual price of a newspaper has become a more important revenue source in the past decade or so, it’s traditionally been a “nuisance fee” designed to give the illusion of value to make sure that people didn’t just pick one up and throw it away without reading it.
But the TCM concept was that the cost of the newsprint and the lack of purchase price can be made up because if advertisers were convinced you could put more eyeballs on their ads they would flock to you. Not only do you get more advertisers with bigger circulation but you can charge more for each ad.
The TCM wars on Kaua`i started with The Kaua`i Times (TKT) which actually tried to compete with the local newspaper of record with news, albeit slanted- originally to reverse the Nukoli`i vote that first banned the resort that sits all alone between Hanama`ulu and the golf course and later to support the “north shore boaters.”
Though in big cities the distribution usually takes place via “free” news racks, in smaller more rural areas there are two preferred methods- by mail or by physical distribution to people’s driveways.
The downside of mail is two fold and both have to do with cost. First of all there is a postal definition of a newspaper that says that it must have a certain percentage of actual news versus advertising. But since cheap content has always been out there the big one is that a certain percentage of the people receiving it must actually request it.
Some kama`aina will remember when TKT hired a clipboard bearing army who invaded post offices trying to get people to sign up for the paper. And few on-line readers of local publications can miss those banner ads asking for you to sign up so you can “continue to receive” Mid-Week, which has gobbled up the ads from the now defunct Kaua`i People and stolen two advertisers- Times Supermarket and Foodland- from the local newspaper-sponsored, driveway-delivered “Island Shopper”- although Foodland has been going with both since KP’s demise.
And make no mistake- those “ad supplements” are where the big bucks are. They pay for the lion’s share of production costs with the smaller ads providing the rest... and the profit.
So far an examination of their “on-line” edition shows “For Kaua`i” to be just more fluff- albeit the kind that apparently lots of people seem to like, with profiles of local artists and businesses.
The one newsy entry- if you scroll down past the fluff- is Conrow’s “overview” of the county council, although a read reveals simply each one’s broad “priorities” rather than anything earth-shaking.
We wish them luck- we’re not out to break anyone’s rice bowl. But with the Chamber of Commerce on the war path lately we’ll have to wait to see the “guts” of the new guy on the block.
Monday, January 3, 2011
... SAME AS THE OLD BOSS
... SAME AS THE OLD BOSS: When we last reported on “pay-raise-gate”- the scandal regarding the illegal pay raise that County Clerk Peter Nakamura received via a brief memo written by former Kaua`i County Council Chair Kaipo Asing, rather than following the evaluation and reporting process proscribed by the rules of the Salary Commission- we relied on a confusing local newspaper account that seemed to say that the confidential personnel memo was released by mayoral assistant Beth Tokioka.
But now we are finally in possession of a key document in the saga- a so-called “Media Statement” written and distributed by current Council Chair Jay Furfaro to various media outlets.
Although the article states that:
(i)n a “media statement” last week, Furfaro said Bynum voted in favor of measures concerning Nakamura’s pay raise twice, once when receiving the commission’s communication and again when approving the FY11 budget
it never made clear whether this was merely a verbal statement or the detailed one page manuscript attached to 21 pages of supporting documents Furfaro provided, including the memo from Asing.
The article also said that:
A memo from the council chair to the personnel director seems to back up (Councilperson JoAnn Yukimura’s) claim (that a the Salary Commission mandated process was not followed) ... The memo does not indicate that there was any attachment that could contain the evaluation required by the rules. County spokeswoman Beth Tokioka confirmed Wednesday that there was no evaluation attached to the memo.
Although many interpreted that to mean that Tokioka revealed the memo- which was part of Nakamura’s confidential personnel file- it was in fact the last document provided in Furfaro’s “Media Statement” packet.
The Statement provides the basis for the contention that the council’s acceptance of the original Salary Commission Resolution (2009-2) was sufficient to serve as the formal process for the evaluation of Nakamura saying:
Under Section 29.03 of the Kaua`i County Charter, the Salary Commission adopts a resolution setting forth the salaries of various elected and non-elected County officers and employees. The resolution is then forwarded to the Mayor and the Council. The Council may, by a vote of not less than five members, reject all and any selected portion of the resolution. (Section 29.03 is attached hereto).
On August 25, 2009, the Salary Commission transmitted the Resolution No. 2002-2 to the County Council. (Transmittal and Resolution No. 2009-2 are attached hereto). The Resolution was placed on the September 23, 2009 Council agenda. Councilmember Tim Bynum seconded the motion to receive the Resolution, meaning that the Council would not be rejecting any portion of the Resolution, including the line item that set the County Clerk’s salary. (Relevant portions of the minutes of the September 23, 2009 Council meeting are attached hereto).
The Statement doesn’t however even mention the Salary Commission mandated, formal evaluation process to actually set the exact amount of the salary (within a proscribed “range”) and effectuate the raise, which the council must follow as the “appointing authority” for the county clerk- separate from its function regarding the Salary Commission Resolution as provided in the county charter.
According to the resolution- and the Salary Commission rules- that process includes providing the Director of Personnel with:
- A memo from the officer’s or employee’s appointing authority at least 30 days prior to the increase certifying that appointee’s performance has been evaluated pursuant to procedures established by the personnel director.
- A copy of the officer’s or employee’s completed performance evaluation evidencing that the appointee has met or exceeded job requirements.
- Based on the evaluation, the appointing authority’s recommendation on whether a proposed increase should be granted.
The mention of Bynum’s “second” is apparently designed to question why Bynum has been one of the two council voices- along with Councilmember JoAnn Yukimura- to question the process, by making it personal- apparently trying to say that, if you buy the false premise that accepting the Salary Commission’s recommendation is enough to effectuate Nakamura’s raise, Bynum’s second would make his raising of issues with the process duplicitous.
It ignores of course that many times people second a motion for discussion purposes and that a second in no way requires one to vote for the motion according to Roberts Rule of Order.
The statement goes on to describe the process that Asing did use in supplanting the correct procedure saying.
The Council Chair Kaipo Asing circulated evaluations forms prepared by the Director of Personnel. I filled out the evaluation and I know that Mr. Nakamura was also evaluated by Councilmember Derek Kawakami and Mr. Bynum. While I cannot disclose the contents of the evaluation because it is a personnel matter, I am confident that Mr. Nakamura met the requirements for his raise. Council Chair Asing sent a memorandum to the Director of Personnel indicating that Mr. Nakamura met the criteria and was entitled to his salary. (A copy of the memorandum is attached hereto).
The Statement further states that:
On April 1, 2010, Mr. Bynum submitted written testimony to the Salary Commission. In the testimony, he stated that, “Currently, the County Clerk, County Auditor and Prosecutor all have salaries greater that the Mayor” and asked the Salary Commission to adjust the salaries. (A copy of the testimony is attached hereto). Mr. Bynum appeared before the Salary Commission and testified that the salaries should be adjusted not because of any concern about the Clerk’s performance, but because it was improper for the clerk, auditor and persecutor to have higher salaries than the mayor (a copy of the minutes are attached hereto).
It’s not clear what the relevance of this might be other than to again try to use the false premise to personally discredit Bynum.
Finally Furfaro makes one more reach, this time with a paragraph saying
On May 26, 2010, the County Council unanimously approved Bill No. 2356, Draft 1, which again included a line item that set the County Clerk’s salary. (Relevant portions of Bill No 2356 are attached hereto). As you can see from the record of the votes cast, Mr. Bynum voted for approval of this bill.
That one is particularly silly considering that the council negotiates line items in the budget for weeks on end and, although no one supports every single line, in the end the “compromise” package is usually passed unanimously- as Furfaro has himself stated publicly on occasion.
The 21 pages of documents in the packet include:
- Article XXIX of the County Charter regarding the Salary commission
- The memorandum communicating the resolution from the Salary Commission
- The Resolution itself (five pages)
- Minutes of the September 23, 2009 council meeting regarding the resolution including a conversation with County Attorney Al Castillo regarding the process for “receiving” the resolution so as to make it effective or for rejecting it by the vote of at east five councilmembers, as provided in County Charter Article XXIX (seven pages)
- The FY 2010-11 Budget Ordinance with a county clerk salary line item and certification page (three pages)
-Bynum’s testimony, with cover letter, to the Salary Commission (two pages)
-Asing’s one paragraph memo to Director of Personnel Malcolm Fernandez, in violation of both the rules for effectuating the county clerk’s raise and the County Code of Ethics (as discussed in our coverage linked above)
What is most distressing in all this is that rather than coming forward and recommending that the proper process be followed and declaring that Asing’s memo was done in violation of the law or at least “done in error,” he chose to defend Asing’s actions and declare that it was “close enough for government work” as the expression goes, supplanting fully extraneous material- which included an invasion of privacy in releasing the contents of Nakamura’s personnel file- and attempting to personally discredit one of the two councilmembers who acted as “whistleblowers.”
This is not the type of leadership the people of Kaua`i want or deserve.
We call on Furfaro to either rectify this by complying with the law and scheduling the proper agenda items to conduct the proper evaluation - even though the timeframe violation cannot be overcome- or, if he continues to stonewall and obfuscate, to resign his post as Chair.
And, if he will not resign as chair we ask the other six councilmembers to remove him.
We also call on the county prosecutor and the Kaua`i Board of Ethics (BOE) to investigate this matter.
But now we are finally in possession of a key document in the saga- a so-called “Media Statement” written and distributed by current Council Chair Jay Furfaro to various media outlets.
Although the article states that:
(i)n a “media statement” last week, Furfaro said Bynum voted in favor of measures concerning Nakamura’s pay raise twice, once when receiving the commission’s communication and again when approving the FY11 budget
it never made clear whether this was merely a verbal statement or the detailed one page manuscript attached to 21 pages of supporting documents Furfaro provided, including the memo from Asing.
The article also said that:
A memo from the council chair to the personnel director seems to back up (Councilperson JoAnn Yukimura’s) claim (that a the Salary Commission mandated process was not followed) ... The memo does not indicate that there was any attachment that could contain the evaluation required by the rules. County spokeswoman Beth Tokioka confirmed Wednesday that there was no evaluation attached to the memo.
Although many interpreted that to mean that Tokioka revealed the memo- which was part of Nakamura’s confidential personnel file- it was in fact the last document provided in Furfaro’s “Media Statement” packet.
The Statement provides the basis for the contention that the council’s acceptance of the original Salary Commission Resolution (2009-2) was sufficient to serve as the formal process for the evaluation of Nakamura saying:
Under Section 29.03 of the Kaua`i County Charter, the Salary Commission adopts a resolution setting forth the salaries of various elected and non-elected County officers and employees. The resolution is then forwarded to the Mayor and the Council. The Council may, by a vote of not less than five members, reject all and any selected portion of the resolution. (Section 29.03 is attached hereto).
On August 25, 2009, the Salary Commission transmitted the Resolution No. 2002-2 to the County Council. (Transmittal and Resolution No. 2009-2 are attached hereto). The Resolution was placed on the September 23, 2009 Council agenda. Councilmember Tim Bynum seconded the motion to receive the Resolution, meaning that the Council would not be rejecting any portion of the Resolution, including the line item that set the County Clerk’s salary. (Relevant portions of the minutes of the September 23, 2009 Council meeting are attached hereto).
The Statement doesn’t however even mention the Salary Commission mandated, formal evaluation process to actually set the exact amount of the salary (within a proscribed “range”) and effectuate the raise, which the council must follow as the “appointing authority” for the county clerk- separate from its function regarding the Salary Commission Resolution as provided in the county charter.
According to the resolution- and the Salary Commission rules- that process includes providing the Director of Personnel with:
- A memo from the officer’s or employee’s appointing authority at least 30 days prior to the increase certifying that appointee’s performance has been evaluated pursuant to procedures established by the personnel director.
- A copy of the officer’s or employee’s completed performance evaluation evidencing that the appointee has met or exceeded job requirements.
- Based on the evaluation, the appointing authority’s recommendation on whether a proposed increase should be granted.
The mention of Bynum’s “second” is apparently designed to question why Bynum has been one of the two council voices- along with Councilmember JoAnn Yukimura- to question the process, by making it personal- apparently trying to say that, if you buy the false premise that accepting the Salary Commission’s recommendation is enough to effectuate Nakamura’s raise, Bynum’s second would make his raising of issues with the process duplicitous.
It ignores of course that many times people second a motion for discussion purposes and that a second in no way requires one to vote for the motion according to Roberts Rule of Order.
The statement goes on to describe the process that Asing did use in supplanting the correct procedure saying.
The Council Chair Kaipo Asing circulated evaluations forms prepared by the Director of Personnel. I filled out the evaluation and I know that Mr. Nakamura was also evaluated by Councilmember Derek Kawakami and Mr. Bynum. While I cannot disclose the contents of the evaluation because it is a personnel matter, I am confident that Mr. Nakamura met the requirements for his raise. Council Chair Asing sent a memorandum to the Director of Personnel indicating that Mr. Nakamura met the criteria and was entitled to his salary. (A copy of the memorandum is attached hereto).
The Statement further states that:
On April 1, 2010, Mr. Bynum submitted written testimony to the Salary Commission. In the testimony, he stated that, “Currently, the County Clerk, County Auditor and Prosecutor all have salaries greater that the Mayor” and asked the Salary Commission to adjust the salaries. (A copy of the testimony is attached hereto). Mr. Bynum appeared before the Salary Commission and testified that the salaries should be adjusted not because of any concern about the Clerk’s performance, but because it was improper for the clerk, auditor and persecutor to have higher salaries than the mayor (a copy of the minutes are attached hereto).
It’s not clear what the relevance of this might be other than to again try to use the false premise to personally discredit Bynum.
Finally Furfaro makes one more reach, this time with a paragraph saying
On May 26, 2010, the County Council unanimously approved Bill No. 2356, Draft 1, which again included a line item that set the County Clerk’s salary. (Relevant portions of Bill No 2356 are attached hereto). As you can see from the record of the votes cast, Mr. Bynum voted for approval of this bill.
That one is particularly silly considering that the council negotiates line items in the budget for weeks on end and, although no one supports every single line, in the end the “compromise” package is usually passed unanimously- as Furfaro has himself stated publicly on occasion.
The 21 pages of documents in the packet include:
- Article XXIX of the County Charter regarding the Salary commission
- The memorandum communicating the resolution from the Salary Commission
- The Resolution itself (five pages)
- Minutes of the September 23, 2009 council meeting regarding the resolution including a conversation with County Attorney Al Castillo regarding the process for “receiving” the resolution so as to make it effective or for rejecting it by the vote of at east five councilmembers, as provided in County Charter Article XXIX (seven pages)
- The FY 2010-11 Budget Ordinance with a county clerk salary line item and certification page (three pages)
-Bynum’s testimony, with cover letter, to the Salary Commission (two pages)
-Asing’s one paragraph memo to Director of Personnel Malcolm Fernandez, in violation of both the rules for effectuating the county clerk’s raise and the County Code of Ethics (as discussed in our coverage linked above)
What is most distressing in all this is that rather than coming forward and recommending that the proper process be followed and declaring that Asing’s memo was done in violation of the law or at least “done in error,” he chose to defend Asing’s actions and declare that it was “close enough for government work” as the expression goes, supplanting fully extraneous material- which included an invasion of privacy in releasing the contents of Nakamura’s personnel file- and attempting to personally discredit one of the two councilmembers who acted as “whistleblowers.”
This is not the type of leadership the people of Kaua`i want or deserve.
We call on Furfaro to either rectify this by complying with the law and scheduling the proper agenda items to conduct the proper evaluation - even though the timeframe violation cannot be overcome- or, if he continues to stonewall and obfuscate, to resign his post as Chair.
And, if he will not resign as chair we ask the other six councilmembers to remove him.
We also call on the county prosecutor and the Kaua`i Board of Ethics (BOE) to investigate this matter.
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