Following the Rules
By Michael Levine on 04 June 2009 in The Garden Island -
http://www.kauaiworld.com/articles/2009/06/04/news/kauai_news/doc4a278cb82f944193950343.txt
image above: Kaipo Asing joind the mob in The Sopranos. Graphic by Juan Wilson.
A Kauai County Council member’s attempt to clarify the process by which Chair Kaipo Asing builds the seven-member legislative body’s agendas and sets its course fell flat Wednesday on the grounds it violated the state Sunshine Law.
Tim Bynum made a motion to add to the Asing-authorized agenda a proposed resolution clarifying the rules under which the chair is empowered to sanction agendas. County Attorney Al Castillo shot it down because it would have constituted a “reasonably major importance” and any action on it could only come after members of the public were made aware of the agenda item in advance.
Bynum’s resolution would amend Council Rule No. 10(c), which says “bills and resolutions must be initialed by the council chair ... in order to be placed on the agenda,” to include clarifying language saying the chair “shall not use this rule to restrict introduction of any bill or resolution introduced by any member indefinitely.” This change would bring it into alignment with Council Rule No. 10(a), which says “any bill or resolution may be introduced by any member.”
“I have on several occasions asked for items to be placed on the agenda that in my judgment warranted public discourse and decision making that you have not allowed,” Bynum told Asing in a Feb. 17 letter obtained by The Garden Island. Bynum notes specifically a bill to put minutes on the Internet, a bill related to county attorney opinions, a bill to fund an ocean study in Po‘ipu and a resolution to clarify the process to release confidential documents.
“I have shared with you my opinion that our current council rules are not intended to give the chair the authority to keep a council member’s request off the agenda indefinitely,” Bynum wrote to Asing. “I believe that a reasonable interpretation of rule 10(c) and the word ‘initial’ is to empower the chair to appropriately manage the agenda by timing placement.
“I believe that an elected official addressing their ideas and putting forth their proposals in the public forum is the point of the democratic process. Open discourse and public debate are fundamental to the process. If a member cannot be persuasive in their argument then the resolution or bill will fail, but to keep the discussion from ever occurring seems to me to be inappropriate,” Bynum wrote.
In a letter to Asing and the rest of the council dated the same day, Bynum further wrote that the placement of an item on the agenda “is not a matter of discretion with the chair ... to grant or deny, but merely administrative in nature.”
With the only two avenues of adding an item to the agenda — with Asing’s initial or through a floor motion — effectively closed off, Asing, who finished fourth in voting in November’s election behind Vice Chair Jay Furfaro, newcomer Derek Kawakami and Bynum, has essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.
After Bynum made the motion at the outset of Wednesday’s meeting, Asing moved the discussion to the end of the agenda.
Five hours later, after dealing with the six-page agenda, Asing said Section 92-7(d) of the Hawai‘i Revised Statutes precluded the council from voting on or even discussing Bynum’s resolution because it is of “reasonably major importance and action thereon by the board will affect a significant number of persons.”
Bynum provided to his fellow council members and the public a May 15 e-mail correspondence between himself and state Office of Information Practices staff attorney Jennifer Brooks in which she told him his proposed resolution “does not appear to be of reasonably major importance or to affect a significant number of people” and “appears suitable to be added to the agenda by a 2/3 vote, and the council would be acting in good faith in so adding it.”
Castillo said the unanticipated matter should be discussed in executive session to protect the council from potential liability. After a 5-2 vote approving the secret session — Bynum and Lani Kawahara dissented — the council closed its doors for about an hour.
When it reconvened, Castillo told the council “the proposed resolution encroaches upon the duties of the chairman as the presiding officer of the council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this county.”
“The people of Kaua‘i did not have an opportunity to know what was placed on the agenda. That’s the reason for the Sunshine Law,” Castillo said, adding that there are rules in place to govern how much time must elapse between the public posting of the agenda and the meeting to which it applies.
After Asing called the meeting back to order and ended discussion by quickly adjourning it to comply with Castillo’s advice, the chair was asked if there were plans to include Bynum’s resolution on the agenda for the next meeting.
“No,” he said.
When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”
“I am just following the rules of the council,” he said.
image above: Kaipo Asing joind the mob in The Sopranos. Graphic by Juan Wilson.
A Kauai County Council member’s attempt to clarify the process by which Chair Kaipo Asing builds the seven-member legislative body’s agendas and sets its course fell flat Wednesday on the grounds it violated the state Sunshine Law.
Tim Bynum made a motion to add to the Asing-authorized agenda a proposed resolution clarifying the rules under which the chair is empowered to sanction agendas. County Attorney Al Castillo shot it down because it would have constituted a “reasonably major importance” and any action on it could only come after members of the public were made aware of the agenda item in advance.
Bynum’s resolution would amend Council Rule No. 10(c), which says “bills and resolutions must be initialed by the council chair ... in order to be placed on the agenda,” to include clarifying language saying the chair “shall not use this rule to restrict introduction of any bill or resolution introduced by any member indefinitely.” This change would bring it into alignment with Council Rule No. 10(a), which says “any bill or resolution may be introduced by any member.”
“I have on several occasions asked for items to be placed on the agenda that in my judgment warranted public discourse and decision making that you have not allowed,” Bynum told Asing in a Feb. 17 letter obtained by The Garden Island. Bynum notes specifically a bill to put minutes on the Internet, a bill related to county attorney opinions, a bill to fund an ocean study in Po‘ipu and a resolution to clarify the process to release confidential documents.
“I have shared with you my opinion that our current council rules are not intended to give the chair the authority to keep a council member’s request off the agenda indefinitely,” Bynum wrote to Asing. “I believe that a reasonable interpretation of rule 10(c) and the word ‘initial’ is to empower the chair to appropriately manage the agenda by timing placement.
“I believe that an elected official addressing their ideas and putting forth their proposals in the public forum is the point of the democratic process. Open discourse and public debate are fundamental to the process. If a member cannot be persuasive in their argument then the resolution or bill will fail, but to keep the discussion from ever occurring seems to me to be inappropriate,” Bynum wrote.
In a letter to Asing and the rest of the council dated the same day, Bynum further wrote that the placement of an item on the agenda “is not a matter of discretion with the chair ... to grant or deny, but merely administrative in nature.”
With the only two avenues of adding an item to the agenda — with Asing’s initial or through a floor motion — effectively closed off, Asing, who finished fourth in voting in November’s election behind Vice Chair Jay Furfaro, newcomer Derek Kawakami and Bynum, has essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.
After Bynum made the motion at the outset of Wednesday’s meeting, Asing moved the discussion to the end of the agenda.
Five hours later, after dealing with the six-page agenda, Asing said Section 92-7(d) of the Hawai‘i Revised Statutes precluded the council from voting on or even discussing Bynum’s resolution because it is of “reasonably major importance and action thereon by the board will affect a significant number of persons.”
Bynum provided to his fellow council members and the public a May 15 e-mail correspondence between himself and state Office of Information Practices staff attorney Jennifer Brooks in which she told him his proposed resolution “does not appear to be of reasonably major importance or to affect a significant number of people” and “appears suitable to be added to the agenda by a 2/3 vote, and the council would be acting in good faith in so adding it.”
Castillo said the unanticipated matter should be discussed in executive session to protect the council from potential liability. After a 5-2 vote approving the secret session — Bynum and Lani Kawahara dissented — the council closed its doors for about an hour.
When it reconvened, Castillo told the council “the proposed resolution encroaches upon the duties of the chairman as the presiding officer of the council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this county.”
“The people of Kaua‘i did not have an opportunity to know what was placed on the agenda. That’s the reason for the Sunshine Law,” Castillo said, adding that there are rules in place to govern how much time must elapse between the public posting of the agenda and the meeting to which it applies.
After Asing called the meeting back to order and ended discussion by quickly adjourning it to comply with Castillo’s advice, the chair was asked if there were plans to include Bynum’s resolution on the agenda for the next meeting.
“No,” he said.
When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”
“I am just following the rules of the council,” he said.A Challenge to the 3 D's
SUBHEAD: Where is the aloha?
SOURCE: Elli Ward elaloha@gmail.com
Once again, thanks to M. Levine's coverage of the goings-on at the County Council (Following the Rules, 06/04), we the public are informed of the ruthless ways our public officials engage in to "silence dissidents" and impose their will on their fellow citizens. What happened to all those pledges to practice ALOHA, act in the public interest, promote what is best for our community and beloved island, I ask.
I happened to attend the Nov. 24/08 council meeting and saw first-hand evidence of blatant disregard for proper lawful procedures, the display of the fruits of backroom politics in the preordained committee and council structure (preprinted with numerous copies handed out, no less), and how those that dare oppose or question procedure could be "punished." Our then Mayor and now Council Chair, Mr. Asing, once again has chosen to unfold the various political tricks and iron determination hitherto napping under his cloak, to impose his will on fellow council members and, on us, the public, whose interest he has vowed to serve and PROTECT.
I now, like in the days of yore, throw the gauntlet at the 3 D's (D. Chang, D. Kaneshiro, D. Kawakami), to rise up and challenge what is evidently so wrong. Council members Bynum and Kawahara are trying against overwhelming odds, to engage the public in government by opening up: "...County Attorney's opinions to public scrutiny...clarify process to release confidential documents...put minutes on the Internet," to name a few changes to the status quo. These all sound good, educational, informative, and, believe it or not: democracy in action.
I appeal to you to start thinking for yourselves, return the power to the people, your own friends and neighbors who can only make right choices IF provided full and truthful information. Let's all live aloha like we mean it.
Keeping the dark as dark as can be
SUBHEAD: Doing what’s wrong as long as he can.
By Andy Parx on 03 June 2009 in Got Windmills
http://parxnewsdaily.blogspot.com/
The illegal conspiracy between Council Chair Kaipo Asing, County Clerk Peter Nakamura and various county attorneys to methodically violate the sunshine law has been the well documented in this space during the past year and a half.
Lately it’s only gotten worse with the description of agenda items containing less and less of the specific information required by law, leaving out key details, especially those that might raise an eyebrow or two or find their way into this space.
Sometimes the actual reading of the agenda item at the meeting- the first most of the viewing public has heard of the matter- lacks even the specificity the printed agenda contains, especially when we’ve picked apart and highlighted some of the more outrageous items.
Most recently when we picked up on a discrimination complaint filed with the national EEOC by former county attorney Margaret Hanson Sueoka, although the EEOC and Sueoka were mentioned on the official agenda neither was mentioned in the reading of the executive session item appropriating money to fight the claim.
None of this could be done without the benevolence of the county attorney (CA) whose function has morphed in the last decade from having a public component to merely being the attorney representing the council and administration. Opinions upon which those in public service rely never see the light of day any more- or didn’t until a recent vote by the Board of Ethics (BOE) to release one.
The county attorney is hired and presumably fired by the council and the administration together according to the county charter. But a resolution from the Salary Commission up for council approval at today’s council meeting seeks to remove the council as a whole from evaluating the county attorney for purposes of determining his or her salary and give that power to the council chair and mayor alone.
And of course the change, written into the details of the resolution and not in the multiple “whereas’”, is not listed on the agenda item either.
The agenda item reads
C 2009-194 Communication (04/28/2009) from Virginia Kapali, Chairperson, Kaua`i Salary Commission, transmitting for Council information, Resolution No. 2009-01, relating to the salaries of certain officers and employees of the County of Kaua`i which was adopted by the Salary Commission at its April 28, 2009 meeting, and recommending amendments to the Kaua`i County Code related to salaries of certain officers, the County Council, and Council Services employees.
And in the list of whereas’ it says
Whereas the Commission further desires to minimize confusion by eliminating inconstancies between the provisions contained in the Kaua`i County Code and any Salary Commission resolutions approved by the County.
Sound pretty innocuous- just some “housekeeping” changes, eh?
The effect is to cut members of the council out of the equation and currently that serves to silence council “dissidents” Lani Kawahara and Tim Bynum from their crusade to open up the council’s doings to the disinfectant of Sunshine.
As PNN reported last month Kawahara has simply sought to have all the public information that the council gets every week be available to the public on-line rather than having them printed out on reams of paper and distributed only to those willing to drive to Lihu`e and specifically request all the accompanying paper work that goes with each agenda item.
Kawahara is so frustrated she has threatened to take the paperwork, re-scan it (since they won’t make electronic versions available to her) and post them on a web site independent of the county or council services.
As has been reported here and in the pages of the local paper Bynum has been engaged for years- all in vain- in a campaign to open the pages of county attorney opinions to public scrutiny and has been blocked by Asing and Nakamura at every juncture.
That could not have been done without the acquiescence and direction of the last three county attorneys who at first stopped the council from simply voting to release the opinions as they had in the past until they put in place a standard procedure for doing that.
This allowed Asing to block the introduction of such a resolution for about a year and when Bynum pushed harder, eventually with Kawahara on his side, Asing and the CA said that they needed to wait until a county-wide policy was put in place for a standard way for all boards and commissions to release the opinions.
Although the recent BOE opinion was released, that was done in the face of a “request” from the CA to hold off until this long awaited policy is drawn up and approved by all of the boards and commissions- a process that could take years.
The salaries of appointed officials like the CA are set in a “range” according to the County Code 3-2.1, all dependant on an evaluation of the “appointing authority”.
Even if a salary is set at say $107,335 a year like that of the new county auditor- which is set in the salary commission’s resolution pursuant to the new charter amendment passed last November- it could be much lower at the discretion of the person appointing the new auditor, based on a standard evaluation form to be provided by the director of the Department of Personal.
But whereas the current ordinance reads “(t)he county attorney’s salary shall be evaluated by the mayor and the council” the proposed ordnance deletes that and substitutes “the county attorney’s performance shall be conducted (sic) through an equally weighed evaluation that shall be jointly administered by the mayor and the council chairperson”.
Though it may seem like a minor change since the council chair serves at the pleasure of the majority of the council, in the case of Asing, who apparently abuses his discretionary power at every chance, it’s a change that only consolidates the power of the minotaur with another blind alley in the undersea labyrinth that squelches dissidents and allows him to “do what’s wrong as long as he can”.
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