got windmills?

WHERE DO THE HUSKIES GO?

2009-12-01T17:27:00.001-10:00

WHERE DO THE HUSKIES GO?: When we first heard that former mayoral candidate Rolf Bieber was appointed to the Kaua`i Board of Ethics (BOE) and heard he was seeking to clean up this town a la Marshall Dillon our world-weary, seen-it-all, smart-ass response was a decidedly satirical “good luck Chuck”.

So it’s with more than a little surprise that today the local newspaper’s Mike Levine has reported that one of the worst offenders of the charter’s ban on board and commission volunteers appearing before the county government on behalf of private interests while serving on other boards of commissions, Lorna Nishimitsu, has joined one her associates, Jonathan Chun, in resigning her Board of Review position.

It comes on the heels of course of the BOE’s decision to advise former Charter Review Commissioner (CRC) Mattie Yoshioka that she was in violation of the charter, despite a previous opinion clearing Chun who also served on the CRC.

But Nishimitsu- who has cut her teeth defending some of the more scummy developers and landowners for old boy network charter member attorney Walton Hong’s firm before moving on to Graham’s more “respectable” jerkwad-representing law corporation- had an interesting parting shot directed at the weasels on the ethics board that are also themselves in violation but have yet to resign.

After the perfunctory resignation her letter goes on to say:

“On a final note, however, please consider the irony that some of the authors of the Advisory Opinion (who, like myself, have appeared before other boards, commissions, agencies or the Council on matters unrelated to their duties as board or commission members) apparently intend to continue to serve on the Board of Ethics.”

That would be Mark Hubbard. Lei Fuller and Judy Lenthall all of whose stories have been well documented in this space.

Well, better late than never although, as with Chun, it’s a little disconcerting that their “boss” Mike Belles is a former county attorney who, by his silence in allowing them to work on cases before the county council, has also apparently been complicit in allowing the whole back-scratching county system to develop and pervade.

It’s sounding hollower and hollower each time the crony-corralling Office of Boards and Commissions Administrator John Isobe repeats County Attorney Al Castillo’s handwringing over, as Levine reports, some purported “chilling effect, causing a mass exodus of county volunteers” if the charter were enforced.

Are they implying that the tens of thousands of Kaua`i denizens who are unconflicted aren't “board and commission material”– and that the few hundred well connected revolving door beneficiaries apparently are- simply because they lack a rubber stamp- or more often, can’t be paid off to do the mayor’s bidding with a favorable decision by a fellow beneficiary.

But looking beyond the mucky muck and his campaign supporters would take a mayor who appoints people based on what they know, not who they know, a concept that when suggested to most people causes a short silence before rip-roaring roll-on-the-floor laughter erupts.

OPEN FOOT, INSERT MOUTH

2009-11-30T16:27:00.003-10:00

OPEN FOOT, INSERT MOUTH: The obvious late-night-comedian-fodder way the two headlines appeared one above the other, at least on-line-

Police chief welcomes ‘constructive criticism’
Doughnuts help sustain leadership program.

-notwithstanding, the soft-peddled content of reporter Paul Curtis’ articles only serves to underscore the tin ear Chief Darryl Perry has for the way his communications with the public sound to the average citizen’s ear.

Apparently Perry was so shocked and apparently angry over receiving a career-first “needs improvement” grade on an evaluation- this time from a member of the police commission- when it comes to whether he “(u)nderstands ramifications of actions to others, the organization and the county,” that he felt the need to share the full evaluation with Curtis who could be counted on to play up the good parts and pooh-pooh the bad.

But what was even more dismaying than Curtis’ apparent need to suck up to the chief and department he covers- as opposed to putting their feet to the fire as “crime-beat” reporters are supposed to do- was what Perry did upon hearing from someone other than the public that perhaps his PR skills are often along the lines of “open mouth-insert foot”.

Curtis writes that upon receiving the evaluation- which other than Curtis’ characterizations has not been shared in full with the public although PNN has requested a copy either be posted on-line or be emailed to us- instead of taking the apparently “blind” or unattributed assessment to heart Perry’s first reaction was to try to track down who would dare to give god’s gift to KPD a less than “exceptional” grade.

Curtis reports that:

“So far nobody has ‘fessed up” to being the one or two commissioners responsible for the “Needs Improvement” scores, (Perry) said. This (needs improvement) ranking scores a two on a scale of one to five, with five being exceptional and one being unsatisfactory.

Fessed up? Seems the chief thinks this is tantamount to a crime. Perhaps a lineup and the third degree are in order.

Was there something unclear about the obvious fear of ostracization and ridicule from his or her peers that the one commissioner with the guts to declare the emperor naked felt in putting it in an anonymous evaluation rather than saying it aloud?

According to some in the criminal justice system the widely touted “vast improvement in morale” on the force has come at the expense of many, including some officers, feeling free enough to questions the polices that result from the politics of the chief and certain commissioners in areas such as medical marijuana, the innocent-until-guilty civil rights of those approached and/or detained and the chief’s acknowledge arming-to-the-teeth” in reaction- many say overreacting- to the non-violent civil disobedience at the Nawiliwili Superferry protests.

Apparently when no one “’fessed up” to the bad grade on his or her own Perry still wasn’t satisfied.

After the evaluation was finished in late October, two years into his current three-year contract, Perry met individually with each of the seven commissioners, not just to identify who was responsible for the low marks in two of the 28 categories, but to seek specifics on why he got the low marks so that he could improve in the areas of “Tracks and adheres to budgetary allocations” and “Understands ramifications of actions to others, the organization and the county,” he said.

And if the message that this kind of mark on his record is unacceptable was still unclear he used a well-trod bureaucratic bromide to make it perfectly clear by, according to Curtis, saying

“Constructive criticism is always welcome,”

implying that this was anything but constructive.

The tag team of Perry and ex-marine, now “pastor” Commissioner Tom Iannucci have been almost comical in the way they manage to bungle public relations whenever given the opportunity despite widespread ridicule in the community for their foible-filled fanaticism.

Many, even among Perry’s strongest supporters, have been almost relieved that his semi-regular column in the local newspaper has become more semi than regular in recent months.

Most people can take a hint. Obviously some cannot.

LUCKY DOG

2009-11-25T17:20:00.001-10:00

LUCKY DOG: One advantage attorneys have over we poor mortals when looking at the “I can’t believe they just said that” Kaua`i county government machinations is that they spend most of their time with noses stuck in the archaic minutia of prior court decisions.

Through such tedium Kaua`i attorney Charley Foster has apparently found a Hawai`i Supreme Court precedent- Fasi v. City Council of City and County of Honolulu- that makes the county attorney’s opinion on charter section 20.02(D) the “lousy lawyering” asserted by Board of Ethics member Paul Weil in the letter to County Attorney Al Castillo we posted Monday.

In his post yesterday at his Planet Kaua`i blog Foster first provides an excellent brief synopsis of the "absurdities” of the “absurdity theory” in the opinion as well as the apparent rejection of the hierarchy of law doctrine saying:

Recall the recent county attorney opinion that asserted that the provision leads to results just too absurd to comply with, and must therefore be read in conjunction with more lenient county ordinances so that officers, employees, etc can in fact appear on behalf of private interests.

Leaving aside the point that an honest reading of the provision simply does not lead to absurd results, and that the ordinance in question doesn't actually apply to the controversial section, what troubles me about the County Attorney's assertion is that it appears to rest on a fundamental misapprehension of the hierarchy of law represented by charters and ordinances. It is axiomatic that a county charter is the fundamental law and that ordinances that fail to conform to charters are what in the federal context would be called "unconstitutional."

Then he drops the bombshell that should end any controversy.

However, it's one thing to assert a legal proposition, and another to back it up with legal authority. As luck would have it, the other day I ran across the case of Fasi v. City Council of City and County of Honolulu, 72 Haw. 513, 823 P.2d 742 (Haw. 1992), in which the Hawaii Supreme Court stated unequivocally that "[a] basic tenet of municipal corporation law is that an ordinance which conflicts with an express provision in a charter is invalid."

The proposition is self-evident that an ordinance must conform to, be subordinate to, not conflict with and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state. Ordinances must not only conform with the express terms of the charter, but they must not conflict in any degree with its object or with the purposes for which the local corporation is organized.

this applies whether or not a charter provision led to "absurd results." The only remedy in such a case would be to amend the charter. It is certainly not permissible to alter a charter's clear requirements by resort to a contrary ordinance.

But one irony that Foster might have missed is that the attorney who argued and won the case for the Fasi administration was none other than then Deputy Corp. Council for Honolulu Jonathan Chun whose request for a BOE ruling on the applicability of 20.02(D) to his job of appearing on behalf of clients before the county council and whether it conflicted with his role on the charter commission, started the ball rolling on the series of events regarding the provision.

It would seem that the tight-lipped Chun should have been very familiar with this decisions but remained silent on the matter

It’s one thing to be accused of lousy lawyering. But matters of lazy lawyering are if anything worse and many times lead to incompetence and even misconduct complaints to the bar.

If Castillo and his deputy Mauna Kea Trask want to avoid such talk it might behoove them to reconsider their ill- or under-considered “opinion” as to whether any “officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency” as stated in charter section 20.02(D).

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We’ll be back Monday but in the meantime check out Kaua`i activist Ann Punohu’s new blog, lengthily titled “Punohu's Politics, Environment and Culture Blog - A blog to keep interested readers up on what Anne Punohu is doing in political, environmental and cultural issues and activities. Updated frequently. If you like Hawaiian culture, political or environmental issues you will love this blog”.

PREROGATIVE BY PAVLOV

2009-11-24T17:07:00.002-10:00

PREROGATIVE BY PAVLOV: The Hawai`i Supreme Court’s recent refusal to overturn 5th Circuit Judge Kathleen Watenabe’s “irretrievably intertwined” ruling specifically dealing with the Kaua`i County Council’s Executive Session (ES) 177 was, though disappointing for both open governance advocates and the Office of Information Practices (OIP), not surprising given the deference given to lower court decisions.

But after reading a letter to the editor from former 5th circuit Judge Alfred “let ’em go” Laureta, it’s more apparent then ever that Kaua`i judges give the same or greater deference to the machinations of local administrative and legislative operatives, no matter how bizarre or even corrupt.

Laureta’s un-blanching support of the council- even to the point of misrepresenting the suit’s derivation- isn’t that different from the actual ruling in it’s use of overgeneralization and even misrepresentation.

He writes:

The council had been criticized for its perceived lack of complete transparency by some members of the council and criticized as well by members of the public for expending taxpayer funds to legally defend its position on the issue...

Disclosure of the minutes as demanded would be equivalent to the elimination of the need for executive sessions. All council deliberations will be open to the public. Discussions involving the legal rights of the county — to sue or not to sue, to settle or not to settle, how much to pay or not to pay, legal strategies, etc. With the public being privy to all this, expediency of council action will be highly questionable.
But of course the reality is that there’s no one who doesn’t recognize the need to executive sessions for matters under litigation, settlement conferences and other similar circumstances.

What people object to is the use of one specific exemption under HRS 95-5(a)4 that is used and abused to discuss and “deliberate toward a decision” on public policy matters and pending legislation under the guise of “consult(ing) with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.

But while Laureta- whose middle moniker came from his penchant for releasing dangerous criminals due to local family connections- and his deference to allowing “any kine” from his cronies in local government rose from the close knit plantation connections prevalent in government in his day, in some ways little has changed... especially when it comes to appointing local judges.

It has become more and more apparent that going to current 5th Circuit Judges Watenabe and Randall Valenciano for enforcement of the constitutional and state legislative restrictions on government is an exercise in futility most likely because that’s the arena in which they were engaged prior to appointment to the bench.

Watenabe, a former county attorney and career-long government lawyer and Valenciano, a former councilperson, naturally have a bias toward the case presented by their former colleagues unlike in other jurisdiction where appointments are often made from among those with either a private criminal and/or civil background or the prosecutorial realm.

Anyone who thinks that the courts have progressed since Laureta’s days and perhaps they will enforce the charter’s ethics provisions in sections 20.02(D) plain language prohibition on “(a)ppear(ing) in behalf of private interests before any county board, commission or agency” ought to look long and hard at whether they can get a fair and unbiased hearing before either of the Kaua`i circuit court judges.

(PNN) BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”

2009-11-23T16:26:00.001-10:00

BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”: (PNN) -- In a stunningly blunt couple of letters written in mid September, Board of Ethics member, attorney Paul Weil, scathingly attacked and belittled both a county attorney opinion regarding the conflict of interest provisions of the controversial county charter section 20.02(D) and County Attorney Al Castillo’s behavior and professional abilities.

In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"

Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.

Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.

He wrote:

I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.

Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!

As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!

The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.

But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.

Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.

For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.

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From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:

I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.

I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.

Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.

Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.

As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.

Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.

I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.

I’ll be happy to discuss.

PAUL

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Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.

There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?

al

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From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.

Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.

Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.

There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.

I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.

Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!

As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!

• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.

I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".

You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.

You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?

I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.

Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.

(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);

(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).

(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;

(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)

(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.

Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.

Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!

Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL

*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"

POLITICAL WON’T

2009-11-20T16:23:00.004-10:00

POLITICAL WON’T: Our post Wednesday on the flakey “opinion” given to the charter commission regarding the county manager issue drew a couple of comments that deserve exposition, on an issue we kind of glossed over because it seemed to be self-apparent to us- but obviously not to everybody.

Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked

...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.

Attorney blogger Charley Foster was of course more to the legal point saying

I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.

So let’s look at the words in the relevant constitution and statue passages.

In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:

Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.

Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...

HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.

Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).

Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.

As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive

All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.

And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.

It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.

We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.

Trask writes:

According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).

Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).

So let’s look at Trask’s arguments one by one:

The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.

Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.

Trask continues:

Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.

We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.

He then seeks to establish what may be called a four prong test.

The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:

1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.

True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.

2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.

It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.

And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?

3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.

We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.

4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.

Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.

Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.

The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.

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Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.

Doug also asked

... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?

That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.

Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.

For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.

Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.

But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.

The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.

But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.

Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.

But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.

Clear as mud?

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With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.

A SERIES OF PAINFUL SHOTS IN THE BELLY

2009-11-19T16:07:00.002-10:00

A SERIES OF PAINFUL SHOTS IN THE BELLY: Our last two chief executives – the late Mayor Bryan Baptiste and current Mayor Bernard Carvalho- have had somewhat divergent management styles. While Baptiste’s explosive temper, petty vindictive nature and penchant for secrecy belied his moniker of “Mayor Aloha” Carvalho is more of a well meaning boob and a self-imposed prisoner of an inherited crooked system.

But the resultant entrenched entropic enterprise remained consistently corrupt because both had a weapon in their arsenal to overcome their shortcoming- mouthpiece Beth Tokioka, the brains behind both operations.

So it’s no surprise that she can both deny and confirm “rumors” in the same breath.

The contention in our Monday post that tonight’s meeting on the new landfill in Kalaheo is indeed not just a public “informational meeting” but a “scoping meeting” for the environmental impact statement (EIS) was deftly addressed in today’s newspaper thusly by when reporter Michael Levine asked if it was true:

Tokioka said Wednesday that a rumor floating around that the meeting is “secretly a scoping meeting” and would be the only opportunity for community members to officially testify for the EIS is untrue.

While comments tonight “are valid and should be considered” in the EIS, the formal process has not yet begun and there will be other scoping meetings and other opportunities for community members to voice their concerns, Tokioka said.

There will be another community meeting on Dec. 16, she said. Those two meetings are “above and beyond” what the mayor is required to do by law, she added

Now to the uncritical reader it might appear that Tokioka is denying that this is indeed a scoping meeting. But, like any true weasel, the weasel words she uses belie the denial.

What she “denies” in the first paragraph is only that it is the “only” scoping meeting, announcing for the first time that there will apparently be other scoping meetings- something that the original press release failed to say.

What she isn’t saying is that this is not a scoping meeting.

By way of explanation as we detailed the other day but didn’t state in as many words, no one publicly calls them scoping meetings- the legal term for the information gathering meetings- any more.

That term had become one that alerted the public that it was the time to give input and list items to be mitigated in the EIS so they now call them call them “informational meetings”.

But if you did take the first paragraph as a denial that it was indeed a scoping meeting the second paragraph makes it clear that “there will be other scoping meetings” meaning our contention that this is a “secret” scoping meeting absolutely true in the sense that the fact that it is a scoping meeting was not mentioned in the press release.

The statement that “the formal process has not yet begun” simply depends on what you consider the “formal process” to be. If you don’t include the scoping meetings and consider the beginning to be the compilation of the draft EIS then this is true. But it doesn’t mean that the EIS process doesn’t begin tonight especially since the outfit preparing the EIS will be there tonight- as Tokioka admits “(w)hile comments tonight ‘are valid and should be considered’ in the EIS”.

Based on the press release and the lack of any mention of other “public informational” meetings we wrote on Monday:

What that means is that if you don’t show up to the little “Q&A” you will have missed the all important opportunity to present testimony- legally know as a “scoping meeting”- regarding the issues that should be considered in the EIS that must be prepared for the landfill project to go forward.

Yes- the use of the words “the... opportunity” would indicate it’s the only one.

And that was what gave Tokioka- the now-divorced half of a power couple with State Representative Jimmy Tokioka until the second time he couldn’t keep his pants on- the ability to deny that it was going to be the “only” scoping meeting- something that, with the new information today that there will be other meetings, has changed.

But that’s all that’s changed, The mealy-mouthed way governmental entities try to hide the scoping meetings and corral people into boring presentations and then deny the community the right to have a conversation rather than a lecture is a methodology that Kaua`i county has embraced- Tokioka’s ability to talk out of both sides of her mouth notwithstanding.

PAWED AND FLAWED AGAIN

2009-11-18T17:50:00.003-10:00

PAWED AND FLAWED AGAIN: While sitting around kibitzing and kvetching in the council chambers with our pal Tony Sommer, former Honolulu Star- Bulletin Kauai Bureau Chief and author of “KPD Blue” he used to routinely pronounce judgment on the foibles and folly with one of his favorite sayings- “when you work for the king you carry the king’s sword”.

And that’s apparently the case with Deputy County Attorney Mauna Kea Trask’s newly released opinion on the proposed county manager system, obtained by the local paper’s ace reporter Mike Levine and posted on line to accompany his article on the document.

We’ll have a more detailed analysis as soon as we get a hold of an “OCA” text copy so quoting it isn’t a chore, but on first blush it appears that Trask simply self-selected his own bowling pins, set them up and knocked them down in a string of straw-man arguments replete with out-of-context suppositions and red herrings in order to declare the concept of a county manager system generally illegal in Hawai`i and maybe the country.

After glossing over the fact that the opinion is proposal specific- based on the unbelievably flawed document authored by Walter Lewis in an attempt to exact revenge for the county’s supreme court victory in declaring his “’Ohana” property tax charter amendment null and void (as we detailed last month)- he then attempts to use a broad brush and questionable interpretations of a passage in state law to argue that any CM system would be illegal, not just in Hawai`i but in the country in general.

Two examples stand out for their disingenuousness.

Unbelievably, after quoting case law requiring those interpreting state law to take the plain meaning at face value and not try to read something into it, Levine accurately reports

Section 46-1.5 of the Hawai`i Revised Statutes states that each county’s charter “shall establish the county executive, administrative and legislative structure and organization,” a phrase that “is interpreted by the County Attorney’s office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager system form would not have.”

If that isn’t reading into the words “county executive, administrative and legislative structure and organization,” that there must be a certain structure including a mayor and council it’s hard to imagine what would be.

The other we’ll discuss today- because it’s refereed to not just in the article but in a post by attorney-blogger Charley Foster who also apparently misses the point in Trask’s completely out of context use of one contention that accompanies the specific proposal.

As Foster writes:

Beyond the legal analysis, the county attorney goes on to strenuously argue against the county manager proposal on policy grounds, proposing answers to a number of criticisms of the current mayoral system. I especially like the attorney's response to what really is the most clueless of the criticisms:

The current exectutive branch of government interferes with the council's ability to enact public policy laws and investigate subjects for which it is responsible.

To which the attorney correctly replies –

This criticism misses the whole point of the American form of representative democracy that utilizes a system of checks and balances.

The problem is that if one actually read the passage in the proposal it specifically and uniquely refers not to general policy but to the main problem that has spurred some to support the CM system- the fact that the council has no ability to compel administrative personnel to come before the council to explain anything without an official investigation and subpoena, including on matters that the council must decide.

This was illustrated last year when the last council questioned the methodology- reported exclusively here, here and here- that the Department of Personnel uses to “reallocate” jobs- some say in order to manipulate the civil service system to place a mayor’s favored but unskilled choice in a job in place of a appropriately skilled and experienced hire.

But when the council tried to ask Personnel Services Division Malcolm “Mel” Fernandez to come before the council and explain himself, he actually refused.

But really what do you expect? We’ve been ambivalent from the start of a CM form of government and many of Trask’s political and policy arguments and criticisms are well founded- although what they’re doing in a legal analysis is a mystery.

They come from not just the overstated benefits contained in Lewis’s proposal- as drawn up and submitted by former charter commission member, the late Walter Briant- but from the actual piss-poor proposal which was apparently hastily drawn up by substituting the words “county manager” for the word mayor in the county charter and then adding a brief description of the method of appointment.

We’ve recommended from the start that the proponents slow down and properly study all relevant matters including the state constitution and laws, the political culture on Kaua`i, the real world way our system currently works- and doesn’t work- and an examination of the literally hundreds of different CM set-ups in use around the country (which certainly belies Trask’s contention that they violate the national constitution and national laws) and draw up a well considered specific proposal... something Trask even admits might pass legal muster before he contradicts himself.

We’ll have more when we get the OCA version and go over it but on first blush, as with another Trask penned option, it appears this one is also “fatally flawed”.

TO-DA-DUMP, TO-DA-DUMP, TO-DA-DUMP-DUMP-DUMP

2009-11-17T16:33:00.001-10:00

TO-DA-DUMP, TO-DA-DUMP, TO-DA-DUMP-DUMP-DUMP: As if to underscore our point yesterday- that the county is seeking to obscure the fact that this Thursday’s meeting regarding the proposed Kalaheo (“Umi”) location for the new landfill is, in reality the scoping meeting for the required environmental impact statement, former Councilmember Mel Rapozo’s blog today ends his post on the meeting and opposing the site’s selection with a paragraph that includes the sentence:

I understand that they may be soliciting comments for a future EIS.

No, Mel, not “may be” soliciting comments for a “future” EIS- this IS the meeting where they will gather initial comments for the EIS.

We received some excellent testimony this morning in the form of a letter to the mayor and council detailing some of the issues that should make people other than the “NIMBY” (not in my backyard) types take notice and we’re presenting it here today.

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WHAT YOU SHOULD KNOW ABOUT THE UMI LANDFILL SITE

November 5, 2009

The top rated site proposed for a new County landfill is in the middle of Kauai Coffee Company’s fields, in close proximity to the Kalaheo community.

The Mayor’s Advisory Committee on Landfill Site Selection, comprised of community volunteers and assisted by an engineering consultant hired by the County, was formed to rank seven potential landfill sites based on more than two dozen criteria. The rankings were done ‘blind’, with each site identified only by number, and given a total score with the highest score indicating the highest suitability for a landfill. The Committee’s findings resulted in several sites closely ranked at the ‘top’ of the list, with the Umi site’s numerical ranking the highest, by a small margin.

The Mayor has forwarded the Committee’s recommendation to the County Council, endorsing their work. The Committee’s volunteer service and dedication to this task should be commended.

However, the resulting recommendation did not take into account key information regarding the agricultural value of the Umi site.

Lands Designated IAL: In March 2009, the State Land Use Commission designated 3,700 acres of A&B-owned land on Kauai—including the proposed landfill site—as “Important Agricultural Land” (IAL). The IAL designation recognizes these lands as important to maintaining a viable agricultural industry in Hawaii, with exceptional agricultural characteristics. The designation considers factors such as current agricultural use, quality of soil, access to irrigation and other agricultural infrastructure, and the commitment of the landowner to continuing active agricultural activity on the land.

No other potential landfill site under consideration is designated IAL.

Further, it appears that IAL designation was not factored into the ratings of the site. The IAL status should make the site ineligible for consideration as a landfill or, at a minimum, should have been criteria that reduced the site’s suitability.

In fact, the Committee’s recommendation allows for a site’s removal from consideration if “other factors” become known.

Displacement of Agricultural Businesses: One of the criteria considered by the Committee was the displacement of businesses, including agricultural businesses. Surprisingly, the Umi site was ranked identically as four others on this criterion—with ‘little or no impact to agricultural businesses anticipated.’ Yet none of the other sites would disrupt a large-scale, long-standing agricultural enterprise.

Kauai Coffee has provided at least 70 jobs year-round and from 80-100 seasonally, for decades, and has invested millions of dollars in the Kauai economy in establishing its orchard crop, building its processing facility and Visitor Center, providing good wages and benefits to its employees, and the purchase of goods and services from fellow Kauai businesses.

Impacts to Ag Operations: There are a number of ways in which this landfill would harm the agricultural operations of Kauai Coffee.

First of all, having a landfill in the middle of their estate, just about 1,500 yards from their Visitor Center, would negatively impact the perceived value and quality of this valuable agricultural product and the high-quality image Kauai Coffee has worked long and hard to establish. The consumer’s perception, in part, establishes a higher value for Kauai Coffee’s Estate Roasted product, differentiating it within a mostly commodity market.

Secondly, the displaced coffee trees would be cost prohibitive to relocate or re-establish elsewhere— nearly 130,000 coffee mature trees which take seven years to reach full production. Combining the potential loss in production, traffic to the Visitor Center, and the severe compromising the branding strategy, Kauai Coffee’s future—and the livelihoods of its employees—could be at stake.

What Can You Do?

Speak out.

The County Council has received the Committee’s recommendation from the Mayor.

The Council will have to deliberate whether to move forward with public (taxpayer) funding to further study this site, or study multiple sites—or to send the recommendation back to the Mayor.

Please contact the Council—using your telephones, email—and ask them to support agriculture and to please reject this landfill location.

Contact Information:

Personal email sent to all Councilmembers:

councilmembers@kauai.gov

Email sent to Councilmembers & County Clerk:

CouncilTestimony@kauai.gov (becomes public
record)

http://www.kauai.gov/council

DUMP-DA-DUMP-DUMP

2009-11-16T16:19:00.001-10:00

DUMP-DA-DUMP-DUMP: Many on Kaua`i were left scratching their heads when Mayor Bernard Carvalho accepted his Mayor’s Advisory Committee on Landfill Site Selection recommendation to place the new county landfill in the middle of arguably the most financially productive ag land on the island, currently in use growing coffee for the Kaua`i Coffee brand.

But those who strongly oppose the project location, through no fault of their own, might miss their big opportunity to register their specific complaints and apprehensions in the proper manner if all they read was a Friday press release from the county announcing a “Public information meeting on landfill siting process”

It begins:

KALĀHEO – A public information meeting regarding the landfill siting process is scheduled on Thursday, Nov. 19.

The meeting will be held at the Kalāheo Elementary School cafeteria from 6 to 9 pm. A comprehensive look at the landfill siting process will be covered at the meeting including: the results of the Mayor’s Advisory Committee on Landfill Site Selection (MACLS) ranking process and the next steps in siting the new landfill. The presentation will be made by R.M. Towill, Inc., the consultant that conducted the MACLS process.

Ah- a nice little chat to let the public know what the plans are, eh?

You might think so unless you read the following paragraph carefully- and have been paying enough attention to the wily ways of governmental and some private entities in recent years.

There will be a question and answer period following the presentation to identify pertinent environmental issues that should be considered in preparation of the environmental impact statement for the project.

What that means is that if you don’t show up to the little “Q&A” you will have missed the all important opportunity to present testimony- legally know as a “scoping meeting”- regarding the issues that should be considered in the EIS that must be prepared for the landfill project to go forward.

When the National and various state Environmental Protection Acts were passed and Environmental Impact Statements (EIS) became de rigor for covered projects, the main thing they were supposed to accomplish was to ensure that public testimony would drive the project.

But over the years the “playbook” for accomplishing this has evolved from holding open meetings where citizens are given opportunities to file up, one by one, to speak before the proposers and their peers on a given project, to the divide and conquer “public information meeting” that the county, like the rest of the country, uses these days.

When the first “draft EIS” is released what will be reflected in it- the items to be “mitigated”- will be limited for the most part to those gathered at this all important meeting. Then the public will be given one last chance to submit written testimony-usually within a short time frame of as little as 30 days (if you happen to hear about it)- to bring up matters that were missed during the “information”- read: scoping- meeting.

Then a “supplemental EIS” will be issued, accepted by the county and if you don’t like it you have a very short window to go to court to fight it (remember the Superferry and the reason Kauai couldn’t join the suit on Maui was that no one filed suit in time).

This has become “the” accepted methodology for preventing a dialogue regarding controversial issues.

But what many- like those ruing the fact that they “missed” the scoping meetings and in fact the whole process regarding the EIS on the bike-path boardwalk on Wailua Beach- don’t know is that, believe it or not, the new nation-wide methodology was established as a direct result of events right here on little Kaua`i.

In the 1980’s when the Navy wanted to shoot off a bunch of old, dilapidated “refurbished” Polaris Missiles as part of Ronnie Ray-Gun’s still unachievable “Star Wars” program at the Navy base (PMRF) in Mana, after citizen outrage forced Senator Dan Inouye to acquiesce to an EIS, a pubic hearing was held at the appropriately named War Memorial Convention Hall.

The place was packed for three days as thousands filed up to the microphone and told the attending military brass, face to face, where to shove their missiles. It galvanized a movement to opposed the program and eventually, although the Navy did mange to shoot off four of them. it was a miserable failure for the Navy.

But what they learned would change the whole way an EIS process is conducted.

The next time the Navy wanted to expand their program they invited people to a series of small, local “informational meetings” and where there were no microphones and in fact no stage area.

Rather they arranged to break up the crowd and shunt them to various “informational stations” where, after they listened to an interminable spiel from Navy personnel, they were permitted to talk one-on-one with someone with a notepad who wrote down what they thought they heard the person say.

There was no event, no dialogue and more importantly no press there to record the event... because there was no event for them to report.

This worked so well that few even knew what was happening before the EIS was signed sealed and delivered... and it initiated a “new way” of pushing through controversial projects with the least amount of controversy.

Frankly we think there’s no need for a new landfill given the fact that 100% of our non-greenwaste trash stream comes from the mainland and there are landfills there dying to take it back. And a good Zero Waste program would reduce the amount of true trash to be shipped out- at what appears to be a considerable savings if the Honolulu experience is exemplary- to a pittance.

So if you don’t like the Hobson’s Choice “Umi” location that those hell-bent on digging a big pit and throwing everything into it are recommending, you might want to attend this all important meeting Thursday.

DOGGIE SEE DOGGIE DO

2009-11-13T16:06:00.002-10:00

DOGGIE SEE DOGGIE DO: In these times of idiotic penny-wise pound-foolish cut-off-your-nose-to-spite-your-face decision-making designed to avoid the politically distasteful raising of taxes to pay for the state services that we all need and expect, Kaua`i County has managed to somehow avoid similar slash-and-burn cuts in services despite the 10% across-the-board departmental diminutions ordered by Mayor Bernard Carvalho.

But apparently there’s enough lack of forethought to go around as evidenced by yesterday’s county press release announcing “County to end subsidy of online payment user fees”.

It says:

Due to budget constraints, the County will soon stop subsidizing online payment user fees for county services.

Starting January 1, 2010 anyone opting to pay their sewer bill, real property taxes or motor vehicle registration fee online will also have to pay user fees as they do in all other Hawai`i counties.

“Unfortunately, in these difficult economic times we aren’t able to continue to subsidize this cost and feel it’s appropriate to bring our policies in line with the rest of the state,” said Finance Director Wallace Rezentes, Jr.

When someone makes an e-payment with an electronic check, the user fee will be $1 plus an additional $2.50 transaction fee.

Those paying with a credit card will be charged 2.2 percent of the transaction amount and an additional $2.50 per transaction.

Well, all things being equal and assuming it’s all true and has been well thought out, who can argue with that?

The problem is that the release goes on to say:

In addition to online payments, residents and businesses can also pay their sewer bills, real property taxes, and motor vehicle registration fees by mailing a check or going to the appropriate county office to pay. No user fees are charged for these forms of payment. For more information, please call 241-4269 or 241-4271.

So let’s get this straight. The presumably automatic computer-driven method of payment that needs little or no additional actual work by the county to process is now going to cost customers but they can either go down to the office and take up the time of a county worker to process the payment and forward it to the bank- or mail their payment in where an employee has to open the envelope and do the same- is going to be free while we’re going to be nickeled and dimed to use the easy. cost-free method.

Now we’re not ones to demand that government work more like a business. Government, by definition, is there to take on collective tasks for the common good- ones that business cannot accommodate. That’s why by it’s nature, government cannot really be run like a business.

But in this case we’re simply dealing with a time and energy saving, ubiquitous technology that virtually all money-transacting ventures can and do use in a most contrary manner.

Have you tried to buy an airplane ticket or order items from a business lately? Invariably you’ll find a fee for picking up a telephone and talking to an customer service rep who will instruct you that if you want to save on the processing fee instituted for taking up the employee’s time you can go on-line and complete the same transaction for free.

So what’s the deal? Who thought this one up? Is it because everyone else- i.e. the other counties- are doing it?

At the risk of sounding like mom we have to ask “if the other counties jumped off a bridge- or for that matter spent $12 million on it instead of $1 million as was mentioned in this space Wednesday- would you do the same?”

Another day another answer to the question of whether anyone here can play this game.

HANGIN’ LOOSE

2009-11-12T16:26:00.004-10:00

HANGIN’ LOOSE: We have the utmost respect for the journalistic skills of our friend Joan Conrow but today we’ve gotta take exception and question the source of her attack on another friend, Juan Wilson’s and his recent article on Larsen’s beach.

Quoting Wilson, Conrow wrote

I also chuckled just a little bit when I read the closing paragraph in Juan Wilson’s screed about the Larsen’s Beach access issue on his website, Island Breath:

“These attitudes and strategies are typical of property owners that see the land as a commodity with which to make money, and not the very source of our lives. It's time to take that attitude about "private property" behind the barn and put it down."

Funny, I distinctly remember interviewing Juan in the house he owns — and uses for his business — in Hanapepe. So how come Waioli Corp.’s private property is “the very source of our lives,” but his isn’t?

It’s really amazing how out of context the quote and comment are taken. Juan’s article specifically details the practices of Moloa`a area big landowners Bruce Laymon, Tom McCloskey and Peter Gruber who have sought to clear the area of those pesky citizens and deny them beach access, much of it with a thinly veiled hatred for perceived “hippies” and moreover naked people who frequent the isolated beaches in the area.

The beginning of Wilson’s sentence- his concluding though on the details of how the three and other large landowners abuse the power of that ownership- specially calls out “(t)hese attitudes and strategies” he detailed. Any reader cannot come away with the notion that Joan is condemning private property ownership in general- something that, as a matter of fact, we’ve been able to read into some of Joan’s postings on pre-western-contact Hawaiian culture without having to fill in too many blanks.

Could it be that there’s something behind Joan’s misdirectional quote? Well Conrow’s previous day’s post is certainly indicative (no pun intended) of something.

She wrote

Yesterday it was Larsen’s Beach, where I went to take some photographs and refresh my mind on the trails before writing another story about the access issue today.

The presence of nude sunbathers is a recurring complaint about that beach, and while I don’t mind if people swim or sun in the buff, there seems to be a fine line between naturism and exhibitionism. I’m thinking in particular of one old tourist, his face smeared with zinc oxide, who was dressed in an unbuttoned short-sleeved shirt, socks and shoes, but no pants.

Come on, buddy. Who are you trying to kid?

I guess what it comes down to is I don’t care if guys want to lie around with their dicks out, but it’s a different story when they seem intent on showing their members to me, which so often seems to be the case at clothing optional beaches.

Now we weren’t there but we can certainly remember times camping at Kalalau or Kaupea (aka Secret) Beach when it was a bit chilly or the sun was too much for our shoulders when we wore a shirt and no pants. And we can remember prudish individuals calling us out for it trying to intimidate us into kow-towing to their beliefs- religious or otherwise- despite our cultural penchant for going to a secluded place and not having to bend to the restrictive, straitlaced social norms of society.

Even more telling is Joan’s swallowing whole of the myth of the Na Pali pot growers- of which there are few or none these days- after talking to long time anti-camper, anti-nudity crusader, another friend, Sabra Kauka.

In the section just before her criticism of Wilson, Conrow wrote

It seems growers living in Kalalau and elsewhere along Na Pali Coast are responsible for a lot of the opala that piles up there, and according to some of the folks who malama that region, they also damage ancient rock walls when creating their plots and steal irrigation intended to nurture native plant seedlings.

When I interviewed Sabra Kauka of Na Pali Coast `Ohana the other day, she said the group had given up on Kalalau because the problems there were so overwhelming, and each time they returned, all their work had been undone. So now they focus on Nualolo Kai, which has a chance to recover because it can only be accessed by boat.

I find it ironic that so many of those who choose to live outside “the system” and are dismissive of its private property rights think nothing of exploiting and mistreating public lands for their own economic purposes.

The fact is that Kauka and her friends have had a fifteen-year history through the DLNR created and controlled Na Pali Ohana (as PNN detailed in a Parxist Conspiracy TV newsmagazine in the mid-90’s) of overstating the presence of any problem with the “outlaws” in Kalalau who, if anything, actually benefit the valley and cultural vestiges by trying to encourage tourists and newcomers to respect the valley, using the characterization of “opala that piles up there” to describe the DOCARE’s destruction of the camp sites of the outlaws.

While the perennial campers in Kalalau are certainly there “illegally”- not by law but by DLNR rule- the actions of the state and the Na Pali Ohana are an over the top reaction to those who live simply and in fact do respect the valley, trying to make sure others do the same- especially after many of them tried to join the “`Ohana” during it nescient days and obtain permission to join in the stewardship programs but were rejected, many still claim, due to their “different” culture... and some say skin color.

While we respect the true host culture we’ve got to ask if in this instance whether the sans-attire culture is truly an insult to the Hawaiian culture- something we might project is at least partially behind Joan’s apparent attitude? Or is it more likely offensive to those who have either internalized- or actually become part of- the well-known 200% christian culture in the islands due to early post-contact missionary influences?

We figured out early on in life that clothes are simply something that, barring inclement weather, you wear so the cops don’t arrest you when you go outside

Nude is not lewd unless others have been somehow indoctrinated to overreact to it.

PAVLOV’S PRIDE:

2009-11-11T16:06:00.001-10:00

PAVLOV’S PRIDE: Our post on Monday regarding the infuriating way Councilperson Jay Furfaro protects the Minotaur’s labyrinth though the use of pompous paternalism and obfuscation- preferring to see it as stewardship- drew a few emails affirming that the observation is not ours alone with one lamenting the fact that, instead of listening he gets huffy and acts “hurt” when people have the temerity to point this out to him.

Another contained an illustrative story from “nitpicker” Glenn Mickens that stood out and, with his permission, we are highlighting it here today.

For me, Jay is probably the most knowledgeable person on the council BUT as you said his "pompous, paternalistic, know it all persona" AND his sway with the political wind attitude keeps him from being a fine people's representative.

When the Olohena Bridge was being debated in the chambers---the contractor needed a money bill for $500 thousand to go ahead with the project--at 4:30AM a few years ago Jay voted to give them the money bill!!! Jay was the one to bring up the fact that the Acrow people could build the same bridge for well under $1 million whereas Unlimited got $4.8 million for building it. I picked up on this issue and got together with the Acrow people and confirmed that they could and would build this bridge for the well under $1 million dollar price. PLUS Acrow could put the bridge in place in one to two days whereas Unlimited took 3 months to build theirs and had traffic detoured for miles while construction was being done!!!

When Jay told me that he "had" to vote for the money bill I told him it would shoot down any chance for Acrow to build it but he just walked away. Obviously the political wind (or other ulterior motive???) influenced his decision and this was just another example of Jays make up. And, at vote time on that morning it was a 3 to 3 vote for the money bill and the "great" Jo Ann voted to give them the money bill and the deal was done. Even the Mayor was there till 4:30 (making sure that his buddies got what they wanted) and I lived in his back pocket telling him he was doing the wrong thing.

Maybe you remember this whole incident, Andy, but I had the entire Wailua Homesteads neighborhood fighting against this Unlimited bridge---a small bridge over a "ditch" (so designated on the map) that cost the tax payers $4.8 million dollars and not under $1 million that Acrow would have built it for.

And, Andy, the Kilauea bridge was built for a cost of over $12 million whereas I personally asked the Acrow people (when they were on Island) for an estimate and they said for under a million dollars!!!! Talk about rip offs. And remember that these Acrow bridges are built around the world and we have 4 of them on Kauai (Federal, State and County approved) plus the bridge across the Wailua River will be Acrow so you tell me what is going on???

---------

And to give true meaning to Veteran’s Day we present one veteran’s thoughts... all you have to do is just substitute Afghanistan for Viet Nam and Taliban for Viet Cong to show nothing ever changes...

And for all you FISHionados we’ve also found bit of old Bizerkley:

IN SEARCH OF A PACK

2009-11-10T17:07:00.002-10:00

IN SEARCH OF A PACK: Yesterday’s brief mention of Councilperson Jay Furfaro’s vague 2010 political aspirations for higher office- as reported by Joan Conrow in last week’s “Kauai People”- are nonetheless clearer then those of once and current blogger, former Councilperson Mel Rapozo.

Knowing that he has to do something to get his political fortunes ball rolling after an embarrassingly poor showing in the 2006 special mayoral election where he failed to make the run-off round, he has latched onto the issue of the Furlough Fridays with a redux of a probably apocryphal quote commonly attributed to French politician Alexandre Auguste Ledru-Rollin.

Supposedly, upon seeing a crowd surge past him in Paris during the French Revolution, he is said to have shrieked, “There go my people. I must find out where they are going so I can lead them” .... much as Rapozo said, though with less brevity, in his blog post yesterday:

As our legislators sit back and watch the future of out keiki get compromised, we need to move to action. We need to initiate change ourselves. I am looking for people that will walk the walk, not talk the talk. I'm looking for people that are willing to MAKE CHANGE, not just talk about it. I am looking for THOUSANDS of concerned citizens to come together to DEMAND change from our legislators. If this issue does motivate people to get involved, nothing will. It is so sad to see that more people gave a damn about the Superferry than for our keiki. This is not right. People, let's PUT UP OR SHUT UP. If you are interested in joining this movement, let me know. More importantly, you need to pass this on. My email is melrapozo@gmail.com and I want to make sure that the future of our kids is the PRIORITY! People, let's PUT UP OR SHUT UP. If you are interested in joining this movement, let me know.
GOD HELP OUR CHILDREN!!

Now this wouldn’t be a shallow, transparently self-serving appeal to find new supporters and expand his e-mailing list for a run at either the soon to be vacant state senate seat or the vulnerable seat of State Representative Jimmy Tokioka whose anti-civil rights and pro-Superferry actions among others have pissed of a couple of precinct-loads of progressive East Kaua`i voters would it?

Nah- we’re not that cynical. However we do remember Mel first run for political office when he started showing up to the famous “Developers Gone Wild”, grading and grubbing hearings before the county council and promised to focus like a laser on an investigation of the Department of Public Works- the self same DPW that just cost the county an as yet unknown percentage of the reported $25 million Ka Loko Dam tragedy settlement- for complicity in other prior grading and grubbing cover-ups allegedly under the tutelage of former Mayor Maryanne Kusaka.

Needless to say demands for that investigation were dropped by Rapozo soon after taking office purportedly due to opposition by other councilmembers but coincidentally after the rest of his colleagues went to bat for him in his efforts to keep from the public eye whatever he said during the infamous ES-177... which will forever remain sealed after a recent Hawai`i Supreme Court Decision

Apparently Rapozo- whose new blog now has advertising for such diverse enterprises as the Playboy Store and the 2010 campaign of Republican Kay Bailey Huchison for Governor of Texas- has gone back to his old playbook and come up with a populist issue ripe for demagoguery for the 2010 campaign- one which can accommodate seething rabid rhetoric that can ultimately be swept under the rug once elected because “political realities” have come into play.

Now we would never cast aspersions as to Rapozo’s intellectual integrity. Well, alright we certainly would but here, as a matter of fact and in all seriousness, we actually believe he’s most likely as pissed as anyone at the disingenuousness and vapidity of the Lingle administration and the lack of political will and acumen in the legislature.

But you got to admit it’s funny how, with exactly one year to go until the election Rapozo is seeking to rush to the gates of the Bastille- aka the steps of the capitol- to find his people so he can lead them.

BIG DOG ASPIRATIONS

2009-11-09T15:45:00.003-10:00

BIG DOG ASPIRATIONS: In this week’s “Kaua`i People”- the mid-week advertising newspaper that pops up in your mailbox every Wednesday- our friend Joan Conrow’s profile of Councilperson Jay Furfaro begins by saying “Jay Furfaro is a man with many roles, but steward is the one he considers most important”.

But many who know and have dealt with Furfaro or watched his machinations at televised council meetings, see that quality which Furfaro calls “stewardship” expressed in it’s basest form through a kind of pompous, paternalistic, know-it-all persona noted for his penchant for essentially telling questioning members of the public “I’ve looked into it and it’s all ok so don’t worry your pretty little head about it”.

Now it came as no surprise that, at last Wednesday’s council meeting, the council approved without comment the write-off of a $6,044.98 delinquent “tipping fee” debt- one on which we reported on that same day exposing the blunder that led to the need to forgo the “bad debt”

We didn’t expect the council to use the television cameras to explain that, after eight years of lapsed payment plans, the debt was now uncollectible due to a legal screw-up by former Deputy County Attorney Jim Tagupa who, after the county sued and the judge ordered the amount be paid or the debtor’s property be attached, inexplicably filed a “Satisfaction of Judgment” despite the fact that the money was never paid.

(To follow up, current County Attorney Al Castillo still has not returned our Wednesday phone call asking for an explanation and/or comment.)

But what occurred during a recess after the matter had been swept under the rug was exactly what we’d expect from Furfaro, whom Conrow’s article intimates is considering a run for the to-be-vacant state senate seat in 2010.

Seems the “nitpickers”- the group of council regulars who now wear as a badge the name they got from former Mayor Maryanne Kusaka for criticizing the inflated purchase price of Kaua`i Electric by the current co-op- was discussing the write-off wondering what the deal was and why we were taking the loss.

That’s when the self appointed nitpickers were overheard by Furfaro, the self appointed all-purpose explainer. Unsolicited, he sauntered up to them and, according to nitpickers Glenn Mickens and Rob Abrew told them that it was simply “an accounting problem” and that the council was actually insuring that the matter “can now go to collection”

Abrew said “he told us this is the way the accountants do it- this way we can write it off our books and it can go to collection”.

Mickens independently corroborated Abrew’s account- without having heard it or discussed it with him or us- saying in an email saying that Furfaro “said it is simply some type of accounting problem and that when the issue goes in the proper table it means that the account is still collectible”.

We admit to being a bit sneaky here in publishing the real story during the council meeting rather than before or after as an experiment to see whether the council- who was presumably just as informed as we were since the information came from the council’s packet of background documents they receive with the agenda six days before each meeting- would be honest and level with the people on their own, without media prodding.

And as we said we fully expected that no one would say a word in session when the matter was silently approved. But Furfaro’s seems so fixated on his “stewardship” role- even to the point of either making stuff up or talking about it without doing his homework- that he can’t resist an opportunity to either cover for administration incompetence even it means “open mouth-insert foot”.

And he wants to be our state senator- or if not move up to council chair when Kaipo Asing retires next year as he has publicly stated he will.

It makes us once again quote Manager Casey Stengle of the still-a-record 120-game-losing 1962 NY Mets who asked “can’t anyone here play this game?”.

(PNN) FORMER CA TAGUPA’S “BLUNDER” TO COST COUNTY OVER 6K:

2009-11-04T16:08:00.003-10:00

FORMER CA TAGUPA’S “BLUNDER” TO COST COUNTY OVER 6K:

(PNN) It’s the perennial question regarding governmental SNAFUs, especially on Kaua`i, one taken advantage of by many a county worker- was it malfeasance, malpractice or simply incompetence?

Case in point an item on today’s council agenda:

C 2009-344 Communication (10/01/2009) from the County Engineer, requesting Council approval to write-off delinquent tipping fees in the amount of $6,044.98 for Eric Taniguchi dba Eric Taniguchi Trucking & Equipment ("Taniguchi") (Account #55445-432027), pursuant to Kaua`i County Code Section 21-9.4, relating to uncollectible delinquent tipping fee accounts (Department of Public Works Solid Waste
Division).

Matters like these seem to pop up on the agenda now and then, mostly for sewer fees that are uncollectible due to things like bankruptcies or simply the fact that it would cost more to sue the delinquent individual than they owe.

But a tipping fee- the money that commercial businesses pay per ton to dump their load in the county landfill? That’s a new one on us.

A look at the paperwork behind the request though shows a story of either the worst bungling incompetence in a long time or an effort by one individual- then Deputy County Attorney James Tagupa- to help Taniguchi get away without paying the $6,044.98 he owes the county.

According to a letter to the council from County Engineer Donald M. Fujimoto with the concurrence of Director of Finance Wallace G Rezentes Jr., it all goes back to May of 2001 when Taniguchi was issued a delinquency letter for $34,704.49 in tipping fees. After a June follow-up letter, in August Taniguchi’s tipping privileges were revoked after the county attorney’s (CA) office unsuccessfully attempted collection.

In September Taniguchi and the county reached a “payment plan” and the suit was dropped but apparently by January 2004 Taniguchi had fallen into delinquency and another plan was formulated to make him pay off $15,986.64 over the next 12 months.

Strangely enough considering the non-payment and default over the previous three plus years, Tagupa recommended that “no collateral be collected, given Taniguchi’s previous record of payment”.

Or non-payment as the case may be.

By November Taniguchi was in default again and was sent a letter by the Solid Waste Division that remained unclaimed and was returned. The County Engineer then asked the CA to file suit against Taniguchi for $3,681.52 and in March 2005 District Court entered a judgment for the county which was recorded with the Bureau of Conveyances against Taniguchi’s assets.

That’s when all the extremely specific facts in the letter turn vague.

For some reason “(a) satisfaction of judgment was filed by Tagupa with the District Court in July 2008 and subsequently with the Bureau (of Conveyances) in August of that year. The filings do not indicate why Tagupa filed the Satisfaction of Judgment” since apparently the judgment was never satisfied, although the letter fails to say this in so many words.

There is also no explanation of the discrepancy between the $3,681.52 that was apparently awarded in court and the $6,044.98 that the council is being asked to write off.

As the letter’s penultimate paragraph says “(a)s a satisfaction of judgment was filed, we are unable to pursue this debt further. Upon recommendation of the county attorney we request the said amount be written off.”

Tagupa no longer works for he county attorney’s office and County Attorney Al Castillo did not return a late morning phone call by press time requesting further information on why Tagupa filed the satisfaction of judgment or whether he was fired for the action.

Others in the CA’s office were apparently terminated when Castillo took over last spring including Margaret Hanson Sueoka who has filed a discrimination action with the federal Equal Employment Opportunity Commission (EEOC) as PNN reported last April.

Many of those hired by Castillo were attorneys that had been apparently fired by new Prosecuting Attorney Shaylene Iseri-Carvalho who was elected last November after serving two terms on the county council.

PUPPY LOVE

2009-11-02T17:13:00.001-10:00

PUPPY LOVE: You can’t pick up a newspaper, watch the local TV news- or what passes for “Hawai`i News, Now”- or for that matter hold a conversation these days without someone bemoaning how our keiki are suffering by “missing out” on 17 instructional school days.

Everyone that is but the kids themselves. Oh sure the media has managed to scrounge-up a handful of Goody-Two-Shoes, “I’m gonna teeeeeell” types and stick cameras in their faces so they can parrot what their parents told them to say about “sacrificing our future” because a petty vindictive governor and a pompous and lazy legislature fiddle while education burns.

But move outside the ear-shot of the grown-up and ask any red-blooded kid- especially those who are bored to tears at this year’s “long division again” curriculum- and you’ll hear nothing but “Hip Hip Hooray for “Furlough Fridays”

They’re ecstatic about the fact that the so-called adults are so busy fighting over political considerations that they can’t come up with a lousy $60-85 million to keep the schools open despite the half-a-billion federal stimulus dollars that were supposed to be spent specially for education but instead went for everything but.

$60-85 million?... hmmmm- why does that number sound familiar?

Oh yeah- that’s the same range of the estimate of how much the self-same governor and legislature blew trying to pull a super-fast-one and ram the super-fast-tracked super-fast-Superferry down our gagging throats.

When you include not just the base $40 million bucks for the unneeded, now-useless harbor improvements but stuff like keeping the half-assed barge loading system running, the millions in legal fees and state-worker time and expenses as well as dozens of other costly incidentals, it comes out to... let’s see, divide by the arrogance, carry the corruption, multiply by the “legal bribe” corporate campaign contributions.... oh, around $60-85m.

So kiddies, the least you could do with all your free time is get busy writing to your military-madness-mindset-muddled senator, your Stepford Wife governor and your bought and paid for state legislative leadership and thank them for the gift of “Superferry Fridays”.

With any luck these dolts will figure out a way to fritter away another $60-85 million and make all weekends the three-day variety.

(PNN) HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE

2009-10-29T15:44:00.001-10:00

HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE:

(PNN) -- In a stunning rebuke to the authority and power of the Office Of Information Practices (OIP) the Hawai`i State Supreme Court, without comment, upheld the intermediate court of appeals denial of OIP’s ordered release of the infamous minutes of the “ES-177” Kauai County Council meeting held in January of 2006.

The Monday decision upholds the original ruling of fifth circuit court Judge Kathleen Watanabe that the attorney-client protected material in the minutes is “irretrievably intertwined” with the material that the OIP ordered released to the public.

More importantly it also sets a precedent upholding the notion that individual agencies may now sue in circuit court to overturn OIP rulings despite apparent legislative intent and construction that allowed OIP to have “final say” on matters involving the state sunshine (open meetings- HRS 92-section 1) and Uniform Information Practices Act or UIPA (open records- HRS 92F) laws

The executive session was called to purportedly allow the council to discuss a council investigation of the Kaua`i Police Department (KPD) but the minutes were believed to contain a wide ranging discussion of specific charges against KPD personnel by former police officer and then council member Mel Rapozo according to OIP letters to the county attorney that were released to the public at the time.

For a detailed analysis of and links to the OIP brief see our July 1 post or click here to listen to the entire audio recording of the audio arguments or here to read the background at the state judiciary web site.

The following is the full text of Monday’s ruling:

ORDER AFFIRMING JUDGMENT ON APPEAL

(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Hare, in place of Recktenwald, J., recused)

Petitioners/Defendants-Appellants Office of Information Practices filed a timely application for a writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA) dated February 19, 2009, entered pursuant to the publishedopinion dated January 30, 2009 in County of Kauai v. Office of Information Practices, 120 Hawaii 34, 200 P.3d 403 (App. 2009) which affirmed the February 11, 2008 judgment of the circuit court of the fifth Circuit. This court accepted certiorari on June 23, 2009, and subsequently ordered oral argument.

Upon careful review of the record and the briefs submitted by the parties, having given due consideration to the arguments advanced and the issues raised, and also having heard and carefully considered the parties' respective arguments at oral argument held on August 10, 2009,

IT IS HEREBY ORDERED that the ICA's February 19, 2009 judgment on appeal is affirmed.

DATED: Honolulu, Hawai`i, October 26, 2009.

(Sent to attorneys) Paul T. Tsukiyama, Cathy L. Takase, and Jennifer Z. Brooks, (of Office of Information Practices) , and Gail Y. Cosgrove and Kunio Kuwabe (of Hisaka Yoshida & Cosgrove) for petitioners/defendants/appellants

Alfred B. Castillo (of Office of the County Attorney, County of Kauai) David J. Minkin and Becky T. Chestnut (of McCorriston Miller Mukai MacKinnon LLP) for respondents/plaintiffs appellees.

MAYBE IF OUR DOGS NEEDED IT

2009-10-28T16:02:00.002-10:00

MAYBE IF OUR DOGS NEEDED IT: It’s nice to see that the local newspaper is putting their time-money where their print-mouth is in pushing the administration to promptly comment on the current Green Harvest helicopter operations after the coconut wireless brought the annoying and absurd disturbance to their attention yesterday

After an editorial this Sunday dealing with the brain-dead few who still oppose marijuana reform, especially for the sick, who would expect anything less?

The irony of the coincidental start of both the expensive expedition and yesterday’s state senate hearings on reforming the medical cannabis provisions- which uniquely administer the law through the Department of Public Safety rather than the Department of Health and don’t afford provision or distribution of people’s medicine- isn’t lost on anyone.

After all much of the western US, where medical marijuana laws have been on the books for years, are rapidly moving to regulate and even tax their ubiquitous distribution centers.

It’s about time for the legislature to act this year to remove all the Catch-22’s from our state’s laws by making it legal to obtain a legal medication. putting regulation of a health- related matter in a health-related department and removing control of a legal-to–possess substance from the control of those who deal with illegalities.

A between-the-lines reader of today’s newspaper report might think that it’s up to the Kaua`i and Maui Police Departments as to whether they will participate in the eradication program- a notion that belies the experience of those on the Big Island.

On Hawai`i Island after years of debate their county council has refused to take the federal money that enables Green Harvest and has in fact commanded their PD to give enforcement of all pot-prohibition laws the “lowest priority”.

Yet the Kaua`i County Council continues to accept the funding year after year without debate much less testimony from the public.

As we did last time, we’ll let the our readers know the next time it comes up on the council’s agenda. Maybe this time people will speak up and bring Kaua`i into the 21st century.

THE ROAD MORE TRAVELED

2009-10-26T16:00:00.001-10:00

THE ROAD MORE TRAVELED: The pilikila over the Larson’s Beach access has finally gotten some attention after a fine article in the Hawai`i Independent by Joan Conrow detailed how once again the public is about to lose a path that has been historically ours forever because of some slight of hand by a big landowner.

She writes:

An outcry over plans to fence off a trail to Larsen’s Beach is causing Kauai residents to revisit two longstanding issues: Should concerns about liability restrict access; and is the county properly recording public easements?

The controversy arose over cattle rancher Bruce Laymon’s plans to install a fence on northeast Kauai coastal land that he leases from the Waioli Corp., a kama`aina landowner whose holdings include the historic Waioli Mission House and Grove Farm Homestead Museum.

But the rest of the article deals for the most part, not with Laymon but with Waioli Corp and the history of the access.

Although going forward it’s Waioli’s actions that will determine the future of the access it’s Laymon’s past actions- with the ok of Waioli- that has brought the issue to a head.

Local rancher Bruce Laymon would have people believe, as his attorney told the Board of Land and Natural Resources (BLNR), that he “is a rancher and landscaper... an avid fisherman who loves Kauai and the community... and is not a sophisticated developer as the Sierra Club would like to have the Board believe”

That, in part was what influenced the BLNR to approve staff recommendations to reduce his fine for illegally clearing the bluff above Larsen beach- a secluded clothing optional North Shore beach where travel-book-reading sunbathers from around the world come to vacation- from $15,000 to $2,000 according to the minutes of it’s July meeting.

Laymon claims that it was an innocent and understandable mistake when he relied on an approved “conservation plan” for his ranch, to do work along the ancient historic Alaloa trail above Ka`aka`aniu (rolling coconut) beach and reef- also knows as Larsen’s Beach after a Kilauea sugar plantation luna- which is famous for its limu kohu according to the BLNR staff report which PNN has obtained but is apparently not posted on line.

The work not only went well beyond what was permitted by the East Kaua`i Soil and Water Conservation District (EKWCD) Board when they approved his Brush Management Plan that had been developed with the help of the Natural Resources Conservation Service (NRCS) but encroached on the state conservation district and county special management area where permits are required to do any work.

Rather than just carefully hand- remove all the non-native plants and leave the foliage in place to hold together the hillside- as the “approved plan” for the other areas required- Laymon apparently came in and cleared the entire area of “brush” denuding the hillside including cutting large trees down to stumps in order to harass the homeless in the area.

According to the report Laymon apparently tried to dispose of the campers’ property calling it “household trash”, engaging in a confrontation with some when they tried to retrieve their belongings.

Though Laymon claimed ignorance and said he was “doing something good for the community”- a position with which members of the BLNR agreed- this isn’t his first run-in with the law for land-clearing operations without necessary permitting- nor is it the first time he’s had confrontational run-ins with nude sunbathers or so-called “illegal campers” on property he leased.

In 2003 Laymon did apparently illegal grubbing and grading on a three acre parcel above Kealia for which he didn’t have an NRCS approved plan. But the EKWCD Board said he made an “honest mistake” in including the three acre parcel in a plan for a different 2011 acre parcel in Kealia according to a lengthy article on the subject in the local newspaper.

This occurred during the infamous Kaua`i County Council “Developers Gone Wild” grubbing and grading hearings, spurred by the 2001 Pila`a mudslide disaster for which developer Jimmy Pflueger received the then-biggest-ever fine for a federal Clean Water Act violation.

Despite the fact that Council Chair Kaipo Asing called actions “another Pila`a waiting to happen” Laymon’s buddies on the EKWCD Board- a group comprised of large landowners in the area who obtain votes based on the acreage they own- cleared him of all charges saying Laymon was just an unsophisticated rancher and landscaper who actually made the area look “beautiful” despite the fact that if a heavy rainfall had occurred while the land was denuded it could have despoiled the reef at Kealia.

Laymon was also involved in the similarly infamous harassment of nude sunbathers in 1990 when he apparently organized an armed vigilante squad that roamed Kaupea Beach- aka Secret Beach- on ATVs at the behest and in the employ of landowners above the beach until the state told him to stop because the beach was state property.

Among those owners were Michelle and Justin Hughes who leased Laymon the Kealia Property that they had obtained from developer Tom McCloskey who bought the entire Kealia ahupua`a after area sugar cane went defunct.

But it seems the BLNR staff either never heard about these incidents or chose not to tell the board about them and rather convinced the board that Laymon was just an unsophisticated rancher and landscaper who made an understandable mistake in clearing the area above Larsen.

The minutes of the BLNR meeting are revealing for what they don’t contain as much as what they do. Although Kaua`i member of the Board Ron Agor told many people that he would push for the full fine the minutes reveal that he actually led the other board members to accept the staff report and reduce the fine.

Laymon is currently applying for an “after the fact” permit from the BLNR for not just the denuding of the hillside but to do the real work he intended to do before complaints stopped him in October of 2008- changing not just the historic Alaloa trail but the traditional easier access to the beach and substituting one more treacherous.

As to the future, the Sierra Club has been on the case and, in a letter, refutes testimony by Laymon’s attorney Lorna Nishimitsu who at one point actually tried to claim to the BLNR staff that the Alaloa trail was actually Ko`olau Road.

The Sierra Club letter to the board details the issues and misrepresentation in the after the fact permit application and is apparently not available on line so is reproduced in full here.

As you know, Paradise Ranch has submitted a CDUA for land leased from Waioli Corporation. This application calls for brush management for ranching and the construction of two sections of fence – one portion designated as pre-existing (near the northern boundary), and additional fencing that is not pre-existing, approximately twice the length of the first portion. We agree that cattle should be kept off the beach. However, the siting of this additional fencing raises a number of concerns.

Safe Beach Access

We appreciate that Waioli Corporation provided a public access easement to Larsen’s Beach years ago, but that route is steep and difficult for both children and elderly to use. The CDUA survey map Exhibit E, indicates that the proposed fence will block the favored public access along the gradual slope labeled “Existing Road” and “Existing Trail”. Emergency responders who routinely rescue visitors from the two rip currents at Larsen’s Beach also favor this route. Therefore, we ask you to keep the existing trail behind the beach unblocked.

Historic Alaloa

Exhibit D in the CDUA notes the State of Hawaii’s claims of ownership of the historic coastal trail – the Hawaiian Alaloa. The Alaloa is not Ko`olau Road as put forth by attorney Lorna Nishimitsu in a letter dated August 5, 2009 (Exhibit C). The evidence of the trail’s location is provided in the document called Ref: K98:1 Moloa`a (from September 1, 1998) which was not included in the CDUA exhibits, but is cited at the top of the Na Ala Hele Memo dated March 1, 2000 (Exhibit D).

Therefore, attached to this letter is documentation from the 1998 Abstract Ref: K98:1 Moloa`a which includes an historic map labeled: Na Ala Hele Exhibit B – “Portion Registered Map 1395 dated 1878 depicting portion of Old Alaloa”.

It is clear from this map that the Alaloa is a coastal trail and not the Kauai Belt Road, Kuhio Highway or Ko`olau Road. Furthermore, there is ample oral testimony collected by Na Ala Hele Kauai Advisory Council members in the late 1990’s that the path traversed close to the coastline and over the Pali. Kupuna in the area can corroborate this.

The “pre-existing” fence does not interfere with the Alaloa. However, the proposed alignment for the new, additional fencing is makai of the existing trail ( see CDUA Survey Map-Exhibit E). The fence would block the “Existing Trail” at two points, cutting off existing public access to Larsen’s Beach via the Alaloa. We encourage Waioli Corporation to seek confirmation from the Na Ala Hele staff abstractor as soon as possible on this matter and to encourage DLNR to conduct a metes and bounds survey of the Alaloa in order to properly site the fence, and submit a corrected survey map for the Conservation District Use Application.

Endangered Species

The project area is adjacent to the sensitive coastal habitat of monk seals, green sea turtles, albatross and other endangered seabirds. Has the lessee considered using fencing that is dog proof so that endangered ground nesting birds would be protected? We hope that the U.S. Fish and Wildlife Service will be consulted and afforded the opportunity to comment.

Summary

We ask that you relocate the proposed fencing so that it is mauka of the trail/road. Doing so would:
a) Preserve the traditional and customary Alaloa;
b) Provide the only safely graded beach access from Larsen’s Beach parking lot;
c) Assist lifeguards and emergency responders in their rescue efforts, and
d) Allow the public access when Monk Seal volunteers routinely ribbon off sections of this beach.

If liability is a concern, Waioli Corporation could dedicate the existing trail/road/Alaloa to the State under the Na Ala Hele Hawaii Trail & Access System, thereby removing the threat of liability. Neighboring Moloa`a Bay Ranch also has a portion of the Alaloa and that easement was adopted into the State Na Ala Hele trail system several years ago. Also, please note that your neighbor Falko Partners, north of Larsen’s Beach, is currently in discussion with the Kauai Public Land Trust about transferring rights to the coastal portion of the Conservation District to the public.

Thank you for your consideration. Perhaps board members would benefit from a site visit to better understand the significance of this coastal gem and its importance to the community.

Sincerely,
Judy Dalton
on behalf of the Executive Committee
(Sierra Club)Kaua`i Group, Hawai`i Chapter

--------------------------

We’ve managed to screw-up the handiwork of our shoulder surgeon and are back to hurtful hunting and painful pecking. We may be posting a little lighter than usual in the coming weeks. Pardon the interruption- try to do better next time.

‘TWERN’T SHE

2009-10-21T16:58:00.002-10:00

‘TWERN’T SHE: Carol Ann Davis wants to make one thing perfectly clear- she was not the one who provided Walter Lewis with a nine page opinion “letter” from Deputy County Attorney Mauna Kea Trask to the charter review commission (CRC) regarding the county manager proposal.

“I’d swear on a stack of bibles it wasn’t me” she told us in a telephone interview yesterday, despite the veiled implication in Lewis’ two part column in the local newspaper last weekend that it came from her

Davis, as a member of the CRC did receive the letter at a meeting of the CRC but said she cannot discuss specifics. She did say that it read like "a lesson in Poly Sci 101" not a legal opinion, something she said she told the commission in open session.

She said she tried to have the letter released but was thwarted by the rest of the commission.

For Davis or anyone to release the letter could be a misdemeanor in violation of Charter Section 20.02B.

Our column last Friday also alleged that the true “writer” of the proposed amendment originally submitted to the CRC by then- CRC member, Davis’ late husband, Walter Briant. was indeed Lewis not Briant and Lewis claimed.

By way of explanation regarding the question of who “wrote” the draft, although according to Davis, Briant was the one who actually went through the county charter by hand and changed all the references to “mayor” to “county manager” (CM) and Davis was the one who typed it up in the proper format, we stand by our statement that according to Briant and another Kaua`i `Ohana member familiar with the process it was Lewis that conceived of and in that sense “wrote”- meaning “authored” rather than scribed”- the draft by instructing Briant precisely what to pen.

Davis admits that the draft was ridiculously inadequate in that all it did was eliminate all references to the post of mayor and substitute the words “county manager”, leaving other details unaddressed.

As far as Lewis is concerned he has refused to speak to the issues on the record writing to us that:

I value my privacy... My personal role is not relevant.

A number of your statements were inaccurate. I expect that you may already know some of them. If you wish, though, I will provide a few corrections and comments for your private information if you will agree to refrain from any publication or distribution of them without my permission.

Though normally we speak to many people “off the record” in this case due to past dealings with Lewis we have chosen to tell him that if he has any corrections of fact and wishes to have them noted in this space we would be glad to check them out and if verified we will publish a correction.

We respect Lewis’ right to publish – and in fact encourage in publishing- factual information contained in the letter while refusing to state who gave it to him. The question of whatever Lewis is a journalist aside, journalists are protected by the new Hawai`i Shield Law which protects them from revealing anonymous sources

Lewis has apparently refused to tell anyone how he obtained the letter including his editor at the local newspaper which published his column.

Upon our inquiry Editor Michael Levine said he did check with the county attorney’s office and

While I don’t love the fact that our columnist is quoting a letter that we haven’t gotten our hands on yet, I do have every reason to believe that it exists and that it says what he says it does. I’ve just gotten off the phone with someone in the Office of the County Attorney who tells me there are no major factual inaccuracies in the column to speak of and that their reading of it was that it was comprised mostly of opinion and not of fact.

And on a final somewhat related note, a comment on Friday’s post took issue with our characterization of the `"Ohana" property tax charter amendment passed “by a huge margin”, saying that blank votes are counted as no votes. While that is true for state constitutional amendments due to the “majority of (total) ballots cast” language in the constitution, our charter provides for yes vs. no vote be counted for a majority in local charter amendments.

In the future if we deem inaccuracies of consequence to be the intentional result of sniping and trolling we will delete the post rather than just ignore the troll as we do now. We don’t care if you want to show everyone what an jerk-wad ass-wipe you are or attack our integrity or hygiene. But we will not allow directed misinformation to appear in this space.

For the record we correct all errors of fact when verified as such. If in the future you see a comment making a claim of error and don’t see a correction it means we stand by our original reporting.

CARVING OUT A THIRD WAY

2009-10-20T16:01:00.002-10:00

CARVING OUT A THIRD WAY: Something subversive clicked this morning when we read the headline in the Honolulu Advertiser saying “Burial council won't sign rail pact”.

Seems that:

(t)he Oahu Island Burial Council has decided not to join other parties ... in signing an agreement on mitigating the rail project's impacts on historical, cultural and archaeological resources...

The burial council decision is largely symbolic and isn't expected to stop or delay the 20-mile elevated commuter train project.

That last sentence seemed odd considering how much power the Kaua`i Island Burial Council (KIBC) has apparently had in recent doings up at Naue where developer Joe Bresca continues to build a massive house on top of burials despite warning from Judge Kathleen Watanabe, while the planning commission has voted to consider revoking his building permit based on the fact that he doesn’t have the proper “sign off” from the KIBC.

What occurs to us is that the oft repeated conundrum for the KIBC- that they are limited to the two bad choices of either leaving the burials in place or removing them- may not actually be the case.

Because, as the months-long delay in holding a KIBC meeting due to a lack of appointments sufficient to maintain a quorum, they have, in a de facto manner, carved out a third choice- to simply not act on the request.

We’re not sure what the planning process on O`ahu calls for but here one of the numerous “sign-offs”- a so-called “punch list” of agency approvals that the planning commission and department rules mandate- is one from the KIBC.

Though the delay was unintentional, apparently, since the “automatic approval” law is inoperable here, if the KIBC simply “receives the matter for the record” – as the county council does when it doesn’t want to discuss an issue anymore- the planning department would be unable to issue a building permit.

After all it’s only been the widely reviled and truth-challenged State Archeologist Nancy McMahon’s -so that there are only two useless wrenches in the KIBC toolbox.

Who’s to say that if they take a page from the county council’s playbook of obstruction they can’t carve out a third?

A TALE OF TWO WALTERS

2009-10-19T16:01:00.002-10:00

A TALE OF TWO WALTERS: Every fortnight readers of the local newspaper are presented with the words of their only regular columnist, Walter Lewis from Princeville.

And this week, as usual, it’s chock full of disingenuity and in fact complete falsifications.

The problem is that we usually– though not always- generally agree with the “opinion” portion of his column but when it comes to presenting facts, Walter seems challenged especially when it comes to being able to disclose his own part in the events he reports upon.

This week’s two part entry would have you believe that Walter Lewis, the observer, is simply reporting and giving his opinion upon on the proposed “county manager” (CM) efforts of the later Walter Briant and his wife Carol Ann Davis-Briant who took over his spot on the charter review commission (CRC) when Walter passed away.

But in fact Lewis not only was the one who first proposed the change to a CM system but actually wrote the proposed amendment that he claims was written by Briant.

Lewis writes that “(b)eginning in 2005, citizens have thus sought support of the charter commission for the manager program” but fails to fully inform the public that in fact the one who originally “sought” it was Walter himself, seeking revenge after his “`Ohana” property tax proposal was struck down by the Hawai`i Supreme Court at the behest of the county council and mayor.

For those who forgot or weren’t around at the time- or didn’t follow the events- Lewis has started a small tight knit group that tried to instituted a California-style “Proposition 13” type property tax reform on Kaua`i, limiting property tax increases to a certain percent a year.

The timing was right. Lewis and his small group managed to not only get the measure on the ballot but have it passed by a huge margin by people who, at the time, were experiencing runaway yearly property tax increases that the council seemed unable or politically unwilling to deal with.

When the council and mayor filed suit to strike down the ballot measure and won in the Hawai`i Supreme Court Walter’s next move was to try to stick it to the electeds by changing the whole system.

Throughout the whole time the CM system was before the prior charter review commission PNN kept asking for a specific proposal since CM systems vary to the point where there are literally a hundred different ways to set one up and an equal number of details that would have to fit into the state system that provides a legal framework into which local jurisdictions must fit their system of governance.

Finally with Briant’s appointment we contacted him and asked for a specific plan and sure enough he produced one. We prodded and prodded and finally, after ascertaining through other knowledgeable sources inside Lewis’ “`Ohana" that it was in fact Lewis who had written the proposed amendment, Davis reluctantly admitted that it was indeed Lewis’ work.

(Note- Although our conversation with Briant was not for attribution at the time, Briant’s death ethically releases us from that obligation)

But Lewis, in his first installment Friday said:

“of the seven-member commission, only one member, Walter Briant, was willing to work for a manager proposal and to develop the details required for its consideration....

(H)e tried without any assistance from governmental or other commission personnel to structure a report on the subject that included a draft proposal containing his suggestions for issues necessarily involved in the proposal.”

Was Lewis intimating that this was Briant’s work, we wondered? Well it certainly was vague enough even though full disclosure on Lewis’ part should have included the author, especially since it was him.

But Saturday’s installment left no doubt Lewis was lying about who the author was, saying

It should be noted that the proposal to which the “opinion” was addressed was an initial draft by Walter Briant in which the “mayor” was to be chosen from among the council members. (emphasis added).

The rest of the Saturday’s “part 2” of the article seemed to center around a 9 page “letter” from the county attorney (CA) replete with Lewis’s lengthy characterizations of the letter. The problem is there is absolutely no reference to how Lewis obtained the letter, how he knows it was genuine or any link to the letter itself. As a matter of fact there wasn’t an actual relevant quote from it, just Lewis’ interpretation of what it said.

Given Lewis’s descriptions of the events in the first part- a combination of half truths and misrepresentations- it has to make you wonder what the letter actually said and if it made some good points about the challenges of instituting a CM system.

We’re not especially for or against a CM system on Kaua`i. While the fact that the prospect of having a professionally run administrative branch would be something that is not just exciting but would be new, it could be worse by consolidating power in the council and eliminating the check on their power.

It certainly could make things worse with the currently corrupt county council appointing some crony who happens to meet the qualifications - no matter how stringent- written into the law. Just look at their appointment from within of long time Deputy County Attorney Ernie Passion as the new County Auditor if you want an inkling of how they would operate if forced to select a “true professional manager”, as proponents would have people believe would certainly happen.

And that would be done in the absence of a potentially counterbalancing mayor.

It’s could just be a matter of “if your eye offends, you pluck it out”.

Of course, presuming parts of Lewis’ characterization of the CA letter are accurate, the CA has no business delving into the politics of the proposal when asked for the legality. But just because the CA is full of it doesn’t mean Lewis isn’t.

When we first read Walter Lewis’- not Bryant’s- draft we did a quick check of the state constitution and Hawai`i Revised Statutes (HRS). While the word mayor does not appear in the constitution we found no less than 13 references to county mayors- a post eliminated in Lewis’ current working draft upon which the CA was commenting.

Most of them are provisions that envision the person of the individual mayors of the counties as having the power of a mayor as the county systems are currently structured. Just look at the “approval” needed from mayors in the current state employee labor negotiations.

Seems the first thing needed to pass a CM system on Kaua`i is to convince the legislature to change the laws to allow for it.

The real problem in the CM system may be the proponents on Kaua`i. They have been seeking to rush through “anykine” CM proposal and every time anyone legitimately asks to slow down and look at it they are asked “why do you oppose the CM system?”- much as those who question the war are asked “why do you hate America?”.

There may well be a concerted effort to defeat the CM proposal by the CA, the council, the mayor and their sycophants on the charter review commission. But by ignoring the real concerns and screaming “conspiracy” the proponents have become their own worst enemy.

And they make it worse still by misrepresenting their own intimate involvement in the project by trying to appear the casual observer with an opinion.

Rather than trying to separate the legitimate questions and deal with them they try to lump all concerns together and characterize them as obstructive.

If the CM cheerleaders keep it up and allow Lewis to disingenuously be their passive aggressive and less then truthful spokesperson there may no one- not even potential fellow opponents- who will back up the efforts.

GETTIN’ JUICED TO IT

2009-10-15T16:06:00.002-10:00

GETTIN’ JUICED TO IT: It’s hard to know what to make of the announcement today that “our Kaua`i Island Utility Cooperative will buy electricity by April 2012 from a new power plant that burns both sugar cane and wood” according to Diana Leone’s Honolulu Advertiser front page report today- a far more complete telling of the story than the press release rewrite, un-bylined article in today’s local Kaua`i newspaper.

According to Leone, also relying on the press release but adding more details:

Pacific West Energy LLC and the utility have agreed on key issues regarding a 20-megawatt, biomass-to-energy plant that could supply up to one-third of Kaua'i's power needs from renewable sources.

All agree there’s a long way to go and of course the devil will be in the details. All the plusses reported today have to be tempered with what this means for the individual “members” of the co-op- a concern that has been anything but first and foremost in the minds of the board of KIUC.

Thirty percent renewable energy, along with the reported 325 jobs and the prospect of using much of our greenspace for growing a usable crop all seem on first blush to be positives.

But lets be clear- although it beats fossil fuel it is anything but a carbon free energy generation facility.

Even more important is another problem... it’s still a “facility”.

The idea of a co-op could have been a good one had it truly restructured the way we think of our energy consumption when citizens forked over a quarter billion dollars for an old dilapidated generation facility and a spanking new post-`Iniki transmission grid.

But instead, the mindset of “we sell electricity to you” just continued the same old consumer-abusive business plan used by commercial utilities.

The leaders of KIUC have done all they can to maintain that model and do everything they can to make sure that individual generation through solar and wind are kept to a minimum with a “can’t do” attitude that belies all the technological innovation used on the mainland.

No smart grids, where computer networks sense use and generation along the grid and instantly tell generators to produce only what is needed when sun and wind are insufficient. None of the new storage mediums prevalent across the world. Only generation plants- like this one- to serve the current business plan.

And this deal seems to cinch that for the foreseeable future. The “renewable standards” are now attainable without making every effort to serve the members.
By making installations on people’s roofs and in their yards an impossibility by using absurdly structured rates for those installations when people have to buy back what they generate into the grid at exorbitant rates, to the efforts of the council to make wind generation almost impossible with a bill currently deferred that would actually discourage individual wind generation and serve only big wind farms”, KIUC maintains that “we sell you electricity to you” model at all costs.

It will be interesting to see what this does to the “(un)important ag lands study”- it’s a game changer as to what's ”useful” ag land. Now that marginally productive acreage in terms of food suddenly becomes useful for growing electricity is there any such thing as useless and therefore unimportant ag land anymore?

But the worst problem it that it will also give KIUC the ability to sit back and continue to discourage individuals from producing their own electricity due to fear of losing the non-profit’s profitability.

Rather than having a goal of minimizing “plant” generation and subsidizing individual generation through zero interest loans with an eye toward minimizing power plants and just maintaining a power grid that serves the people who generate their own- and charging them a minimal amount to use the storage capacity of the grid- KIUC can now sit back and rely on this plant to meet the renewable standards imposed by the state and say screw you to the members.

And just wait ‘til you see what we pay for the juice generated from this biomass plant. If past is prologue it will be at the same rate as fossil fuel.

As long as we don’t demand a different business model from “our co-op” we will be paying through the teeth for a product that should be as free as the sun and wind.

A THIRD OF A NINTH

2009-10-14T16:07:00.002-10:00

A THIRD OF A NINTH: Today the United States Court Of Appeals For The Ninth Circuit will be hearing the case of KC Lum v. Kauai County Council, former Kauai` Police Department Chief Lum’s appeal of the dismissal of his civil rights case against the county council and other county entities.

It may or may not be telling that it’s the last case of a two day calendar.

The audio of the oral hearings should be available here by noon tomorrow.

But when we went to review the briefs filed in search of all the particulars, we found that they were filed “under seal”.

We were able though to obtain what was filed and the list is fascinating. Anyone who has read KPD Blue or this space will recognize many of the names. Keep these in mind when listening to the tape tomorrow.

For those who want a to peruse the scorecard, here’s the full docket so far ...sans details (thanks to Charley Foster).
----------------------
05/05/2008
1 3 pg, 172.92 KB
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Designation of RT for Appellant King C. Lum due 05/05/2008. Designation of RT for Appellee Bryan Baptiste, Leon Gonsalves Sr., Kauai County, Kauai County Council and Michael H. Tresler due 05/15/2008. Transcript order for Appellant King C. Lum due 05/27/2008. Certificate of record due 06/02/2008. Appellant King C. Lum opening brief due 08/11/2008. Appellee Bryan Baptiste, Appellee Leon Gonsalves Sr., Appellee Kauai County, Appellee Kauai County Council and Appellee Michael H. Tresler answering brief due 09/09/2008. Appellant's optional reply brief is due 14 days after service of the answering brief. (GR)
05/05/2008

2
Filed representation notice of Clayton C. Ikei and Jerry P.S. Chang (GR)
05/05/2008

3
Filed Civil Appeals Docketing Statement. Served on 04/25/2008. (GR)
05/08/2008

4 8 pg, 78.65 KB
Filed order MEDIATION (VLS): Case referred to Mediation for assessment conference only. Telephone conference to be on 06/02/2008 at 02:30 pm. (Pacific Standard Time) (KKW)
05/14/2008

5
Filed certificate of record on appeal. RT filed in DC 6/12/08 (EL)
05/15/2008

6
Filed Appellant King C. Lum notice of order of transcript. Reporters transcript ordered: (NONE) (RC)
06/02/2008

7 1 pg, 32.39 KB
Filed order MEDIATION (RGA):The court will initiate a further assessment conference by telephone on July 1, 2008, at 3:00 p.m. PACIFIC (San Francisco) Time.The briefing schedule previously set by the court is amended as follows: appellant shall file an opening brief on or before September 15, 2008; appellees shall file an answering brief on or before October 15, 2008; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. (KKW)
06/30/2008

8 1 pg, 31.74 KB
Filed order MEDIATION (RGA):. At the request of counsel for appellees, the further assessment conference originally scheduled for July 1, 2008, is continued to August 5, 2008, at 3:00 p.m. PACIFIC (San Francisco) Time. (KKW)
08/06/2008

9 2 pg, 28.05 KB
Filed order MEDIATION (RGA): The court has determined that this appeal will not be selected for inclusion in the Mediation Program. All further inquiries regarding this appeal, including requests for extensions of time, should be directed to the Clerk’s office. The briefing schedule previously set by the court is amended as follows: appellant shall file an opening brief on or before October 6, 2008; appellees shall file an answering brief on or before November 20, 2008; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant further settlement discussions while the appeal is pending. (WL)
10/03/2008

10
Received Appellant King C. Lum's notification of filing Vol. 5 of EOR UNDER SEAL, with copy of DC protective order attached. (LA)
10/03/2008

11
Filed original and 15 copies of Appellant King C. Lum (Informal: No) opening brief of 62 pages. Five copies Excerpts of record in 12 volumes (Vol. 5 FILED UNDER SEAL). Served on 10/02/2008. (LA)
11/21/2008

12
Filed original and 15 copies of Appellee Leon Gonsalves, Sr. answering brief of 30 pages and separate addendum. Supplemental Excerpts of record in 4 volumes. Served on 11/19/2008. (LA)
11/24/2008

13
Filed original and 15 copies of Appellees Bryan Baptiste, Kauai County, Kauai County Council and Michael H. Tresler answering brief of 50 pages. Supplemental Excerpts of record in 2 volumes. Served on 11/20/2008. (LA)
12/03/2008

14
Filed original and 15 copies of Appellant King C. Lum (Informal: No) reply brief of 6 pages. Served on 12/02/2008. (LA)
06/29/2009

15
Calendar check performed. [6972743] (AW)
07/24/2009

16 1 pg, 77.09 KB
Received copy of transcript designation and ordering form filed in DC. [7003647] (MT)
08/06/2009

17
Calendar materials being prepared. [7018072] [08-10422, 09-10092, 08-16167, 08-17166, 08-15648, 08-16352, 08-16093, 09-10147] (AM)
08/10/2009

18
CALENDARED: 10/14/2009 9:00 AM Honolulu, HI Sixth Flr Courtroom [7021130] [08-10422, 09-10092, 08-16167, 08-17166, 08-15648, 08-16352, 08-16093, 09-10147] (AM)
09/02/2009

19 4 pg, 121.29 KB

Notice of Oral Argument on OCTOBER 14, 2009 Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case. [7049601] (AM)
09/14/2009

20
UPDATED CASE CALENDARED: 10/14/2009 9:30 AM Honolulu, HI, The University of Hawaii @ Manoa, William .S Richardson School of Law, Moot Courtroom [7060079] [09-10147, 08-10422, 09-10092, 08-17166, 08-15648, 08-16352, 08-16093] (AM)
09/14/2009

21 7 pg, 323.31 KB
REVISED Notice of Oral Argument on OCTOBER 14, 2009 at The University of Hawaii @ Manoa Law School. Please note the location and time change of hearing, and return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Open attached documents to view details about your case. [7060349] (AM)