July 2005

"Orders from Upstairs" confuses Ho`ike board

Confusion reigned at the Ho`ike resulting in a motion to defer action at the July 28, 2005 Ho`ike Board of directors meeting. The confusion simple stated was if the bylaw modification was "recommended" or "mandated" by the Department of Commerce and Consumer Affairs (DCCA). Managing Director J. S. Robertson insisted it was "required" by DCCA Director Mark Recktenwald, other board members seemed uncertain.

Listen to a podcast of the Ho`ike board discussion on this bylaw amendment click on the following URL:

http://www.kauai.net/bm/

Regardless of whether the election was "suggested" or "mandated by the Director of DCCA, an election had already occurred, and Robertson described the after-the-fact bylaw amendment as "housekeeping"

The election for a producer position on the board resulted in a lawsuit initiated by `Olelo the PEG provider on Oahu

In that case a recent court ruling from First Circuit Court Judge Victoria Marks ruled that Public, Education, and Government Access organizations (PEGs) were not agents of the state, and therefore not compelled to follow State Sunshine (HRS92) and Open Records Laws (HRS92F)

In part the order found "There is no Government control over `Olelo's activities."

Mananging Director Robertson was partly responsible for the confusion. Although Robertson cited the Court Ruling and concluded that, "Ho`ike was not a state agency" he failed to inform the Ho`ike board that OIP had appealed the ruling http://hpam.hi.net/OLELOvOIP/#appeal.

The Ho`ike board's confusion (given the court's finding) was how the DCCA could mandate the board of a private non-profit corporation hold an election if indeed it was not a state agency and "there is no Government control." `Olelo took the State Office of Information Practices (OIP) to court after OIP opined that under State Open Records laws `Olelo (and Ho`ike) were required to disclose the phone numbers and residential addresses of eligible voters to candidates running for the elected director position. Both `Olelo and Ho`ike refused

The candidates argued they were entitled to the phone numbers, and residential addresses because the information was "Required for Public Disclosure." by both `Olelo and Ho`ike) on the videotape submission forms required to broadcast a program on public access.

Candidates wanted the information to contact eligible voters to solicit their votes. Candidates argued that being denied access to eligible voters while PEG board members and personnel had exclusive access to voter contact information created the possibility of election manipulation by the PEGs. Candidates feared PEGs could use such information to covertly campaign for favored candidates

Candidates also argued that the inability to contact eligible voters made the election a farce, because the PEGs could skew the election results with sole access to such information to "PEG favored candidates" and their was no way of proving otherwise. Both `Olelo and Ho`ike deny such allegations and as the candidates feared the plausible denibility" makes election manipulation impossible to prove

Regardless of whether the elected director's position and the election to fill it is "suggested" or "mandated" by DCCA it appears to have a chilling effect on the board actions of what the court has ruled is a private non-profit corporation

Further adding to the confusion the proposed bylaw amendment gives the Director of DCCA the power to remove the elected director. Why a board of a private non-profit corporation would propose a bylaw modification that gives a government official the power to remove one of it's directors is the unanswered question that creates doubts about how independent from Government control PEGs really are. This is especially true since the Director of DCCA also has the power to appoint and remove the majority of board members which the director appoints.

Listen to a podcast of the Ho`ike board discussion on this bylaw amendment click on the following URL:

http://www.kauai.net/bm/

Below is the proposed bylaw amendment deferred by the Ho`ike board.

--- begin proposed bylaw amendment ---

ARTICLE VI. DIRECTOR

Sec. 6.2 Number of Directors:

The number of authorized Directors of the Board of the corporation shall be NINE (9). The Director of the DCCA shall appoint six (6) Directors, two (2) Directors shall be appointed by the Cable Operator and one (1) shall be elected in accordance with Sec. 6.9c.

--- begin proposed bylaw amendment ---

Sec. 6.9c Elected Director:

The Board shall authorize the Corporation to administer an election among the Corporation's public, educational, and government users to fill one (1) and only one position, which position was formerly held by an appointee of the Director of the DCCA (the "Elected Director"). Only one (1) Elected Director may sit on the Board at any given time

The election for the Elected Director shall be completed and the results of the election forwarded to the Board within a reasonable time prior to the Board's first meeting of the calendar year. The Elected Director's term shall be set in accordance with Sec. 6.8

If at any time during the first year of the Elected Director's term the Elected Director terminates the position, or is removed for cause pursuant to Sec. 6.10, the vacancy shall be filled by the individual who has received the first, second, or third highest vote total in the original election, in descending order, until the vacancy is filled, provided that if for any reason the vacancy is not filled by one of these three individuals, the vacancy shall be filled in the manner prescribed for filling such a vacancy after the first year of the term of the Elected Director

If at any time after the first year of the term the Elected Director terminates the position or is removed for cause pursuant to Sec. 6.10, the Board shall direct the Corporation to conduct an election to fill the position, provided that if the vacancy occurs during the final six (6) months of the Elected Director's term, the Board may at its discretion allow the position to remain vacant pending completion of the term

Sec. 6.10 Resignation or Removal

The Director of the DCCA may remove at any time, with cause, any member of the Board that he/she has appointed or the Elected Director.

--- end of proposed bylaw amendment ---

The 600 pound gorilla in the room and the unanswered question is, "Why would a private non-profit corporation, that is not a state agency, grant a state agency (the DCCA) the power to appoint, remove, and mandate their election processes for a board seat?

Listen to a podcast of the Ho`ike board discussion on this bylaw amendment click on the following URL:

http://www.kauai.net/bm/

Ho`ike's secret plans to compete with private sector and reduce public's access services

For the Record -Ed Coll

Ho`ike the Public, Education, and Government (PEG) access entity for the County of Kauai submitted a "Strategic Plan For Self-Sufficiency 2005-2010" (see the digitized document following this analysis) to the Department of Commerce and Consumer Affairs (DCCA). It is noteworthy that this plan, although a public record, is not published on Ho`ike's website, and Ho`ike has made no effort to inform the public. For all intents and purposes this has been a "secret plan" until now.

Below is an email request, and Hoike's response for the "Ho`ike Self Sufficiency Plan" from back in Aug 2003

--- begin emails ---

Date: Fri, 15 Aug 2003 15:47:52 -070
From: Ed Coll
To: J Robertson <jrobertson@hoike.org>
Cc: OIP <oip@state.hi.us>, DCCA <cabletv@dcca.state.hi.us>
Subject: Request to examine Hoike "Self Sufficency Plan"

J,
This is a request to examine Ho`ike;'s Self Sufficiency Plan that was requested by the DCCA.
Mahalo in Advance for your Prompt attention to this matter.

Ed Coll

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

And this is Ho`ike Managing Director J Robertson's Sept 5, 2003 response (Item 44)

5 Sep 2003 13:57:06 -10
From: J Robertson <jrobertson@hoike.org>
To: Ed Coll
Subject: request for documents

Mr. Coll,

While on vacation I received a number of email requests for records or documents from Ho'ike. I would like to reply to those requests below.

1. Copy of TeleDemocracy program.
A. Ho'ike did not archive the program and does not have a copy available.

2. DCCA program airing
A. The program did air. There was a playback malfunction at the playback center was resolved as soon as a technician could attend to it.

3. Videotape submission form for the DCCA public hearing
A. Ho'ike produced and aired the program. As managers of the facilty the submission form you referenced is not required. There is no form to review.

4. Copy of the Self-Sufficiency Plan.
A. The plan is a current work in progress and not available for public distribution. While the Director of the DCCA is in the process of developing a new Statewide Plan the self-sufficiency issues cannot be fully addressed. Once the direction is determined Ho'ike will have a plan you will be able to review.

Again, thank you for your continued interest in Ho'ike.

J Robertson

managing director

------end emails -----

But the DCCA Statewide plan for PEGs provided little help and was an excuse to hide the plans from the public claiming it was a "work in progress," and it was Ho`ike that asked DCCA if they could delay the submission of the "Ho`ike Strategic Plan for Self Sufficiency" claiming "the self sufficiency issue could not be fully addressed" without it. This delaying tactic was a ruse to keep the public in the dark so they could not provide input. When the "DCCA Final Plan" was released (Jan 2004) it contained only a brief mention of self sufficiency simply stating:

"DCCA encourages the PEGs to identify and pursue additional funding from other sources, such as through grants that are consistent with the overall PEG mission."

There was nothing to be learned from the plan that justified the two-year delay in making this document public, and as we shall see the Ho`ike Plan wanders far afield of the &Primeoverall PEG Mission&Prime. The DCCA Final Plan says nothing about competing with the private sector to provide non-access related services for a fee.

Though Hoike's Strategic Plan for Self-Sufficiency was only released publicly in February  2005, requests to see it were made in 2003 and again in May, 2005. 

The plan is intended to achieve self sufficiency should a loss in state mandated cable subscriber monies occur. Ho`ike's 18 point plan intends to:

• ask for donations
• compete with the private sector
• reduce services to the community

Competing with the private sector:

Ho`ikes plan to compete with the private sector by engaging in "any number" of the following "fee for service" activities:

• compete with video producers on the island by providing video production services for non-access purposes.
• compete with equipment rental companies by renting equipment (video projectors, etc.) for non access purposes.
• compete with hotels and rent space for conferences, meetings, etc. for non-access purposes.
• compete with captioning services by providing off line captioning for non-access purposes.
• compete with media duplication houses by offering duplication services for non-access purposes
• compete with corporate consultants and curriculum designers by producing training videos for non-access purposes.
• Compete with video producers by producing political spots for candidates for non-access purposes

Reduce services to the community:

While using state mandated cable subscriber monies to undercut and compete with the private sector Ho`ike also plans to decrease services and hours of operation, and increase user fees for training, education, and workshops.

Begging for dollars:

While competing with the private sector (non-access purpose), decreasing public services, and increasing user fees, Ho`ike will also be soliciting by:

• aggressively seek grant and foundation money
• allow corporate underwriting of programming
• allow corporate sponsorship of programs
• seek private donations
• conduct a telethon

Good for Ho`iki?-- but does not support the Ho'ike Mission Statement

Review of the Hoike Stratigic Plan Self Sufficiency reveals that many aspects do not support their mission as stated on the cover page of the plan. Nor does it acknowledge it has already begun to implement a number of the options, even though their funding has not been significantly diminished. Hoike has already begun to pick the "low lying fruit" away from others in the community by competing with another non-profit to provide county video production and services.  

Ho`ike's plan to reduce community services and hours of operation; increasing the public's fees for services; compete with the private sector; and solicit for money. That may be good for Ho`ike, but many in the private sector doubt it is good for business. 

For over a year, Hoike has provided video production services to the Kauai Chamber of Commerce free of charge, though have not offered that to other nonprofits with fewer resources. Clearly, this is an attempt to gain favor with the business community, hoping they will look the other way when the subsidized nonprofit competes against private enterprise.

Many access users are concerned about the planned decrease in services, a decrease in the hours operation, and and increase in user fees. 

Ho`ike was created by the state, the Ho`ike board majority is appointed by the state, Ho`ike is funded by state mandated cable subscriber monies that goes from the cable subscriber to the cable company, and then directly to Ho`ike. According to Hawaii Administrative Rule HAR §16-131-32 the Public access channel is for "non-commercial public access available on a first-come, nondiscriminatory basis." The reality is that only a small minority of cable subscribers are public access users. According to the Ho`ike Managing directors annual reports there have been no new users for the last two years! Many question why cable subscribers are forced by state mandate to fund a state created nonprofit planning to abandon the mission for which they were created use their public subsidy to compete with the private sector. This is especially true in light of a Fifth Circuit Court ruling, a ruling that the state Office of Information Practices (OIP) interpets to mean that PEG's are not covered by Open Records (§HRS92f) nor Sunshine Law (§HRS92)

What you can do right now

If you are some of the many who object to paying a state mandated user fee for public access, and not getting it -- email Director Mark Recktenwald at the the Department of Commerce and Comsumer Affairs (DCCA), Cable Television Division at email address . . .

mrecktenwald@dcca.hawaii.gov

. . .and tell him what you think of Ho`ike's "plan."

DCCA CATV's continual noncompliance with ADA requirements

Aloha Director Recktenwald,

Your DCCA Cable Television division continues to post documents on its website which are not in compliance with ADA accessibility requirements. As you are aware, I have pointed this out to you and the division on numerous occasions, but the anti-access behavior continues. The 2003 PEG Annual Activity Reports, which were originally created with word processor software (aka ADA compliant electronic format) , have been posted in unsearchable and ADA non compliant graphic format. Perhaps it would be prudent for CATV not to waste cable subscribers' money by doing things right the first time. This could be accomplished quite simply for DCCA CATV to require PEGs to submit their reporting requirements in the electronic format in which they were created. I realize this state's legislature has yet to set this as a precedent. Perhaps Governor Lingle, who ran on a platform of more openness in government, would see fit to have her Executive Branch implement such a mandate that is at least 10 years overdue! Don't you think it's about time Hawai'i caught up with the 20th, yet alone the 21st century?

FYI. Thank you for forwarding my concern regarding the 2004 Hawai'i PEG Annual Activity Reports not yet being posted, now some 5 months after submission to CATV. Unfortunately it still has yet to be accomplished. Perhaps it would be appropriate for you to set a deadline for CATV to provide access to the aforementioned reports as well as for all PEG required document submissions in the PEG contracts, which have been in negotiations now for over 18 months! I look forward to a resolution regarding these matters being on the agenda of the next Cable Advisory Committee meeting.

Sincerely,

Jeff Garland

Akacoup Maui - State stifles voice of an access advocate

Though a clause in the State's Oahu Educational Access Agreement contract ¹ would have you believe otherwise, the Hawai'i Educational Networking Consortium (HENC) Advisory Council members' affiliate organizations all came together with campaign contributing development corporations to stifle the voice that helped convince the State to provide for unfettered FREE SPEECH of all Hawaiians through PEG access corporations.

Legislative history already shows that Sean McLaughlin was instrumental in starting PEG access in Hawai'i, and History will show that he was the leading advocate for it's rapid growth through inclusion of and access to "cutting edge" communication MEDIA technologies.

With him now out of the "network", I predict the Hawai'i PEGs inclusion for training of the less controllable mediums will have  slower, if not stonewalled progress, and the Public portion of the PEG pie will continue to diminish at an accelerated pace. I also predict this will be this State's level of empowering its citizens, in spite of conclusions reached in DCCA's recently commissioned Merina and Company, LLP's management letter to the contrary. ²

Hawai'i PEGs know that their welfare funds could soon disappear, yet they have no substantial plan to become self-sufficient should this potential reality come to fruition.

Unfortunately, till the end, I feel we can only expect more quasi-government control of Hawai'i PEGs, while continuing to avoid giving the appearance the State Actors " micro-manage" them. We'll just have to wait and see if Office of Information Practices Director Les Kondo has enough cahones to appeal Judge Victoria Marks obviously flawed, timely orchestrated court ruling that apparently no Hawai'i PEG is an "agency" under HRS 92f UIPA. If Kondo doesn't, I feel sorry for you reporters that would attempt to access the truth about any Hawai'i PEG. All that is left available are the minimum reports DCCA requires through their minimal, situation accommodating contracts.

Sean had a solution to this mess, he got fired!

Lucky We Live Hawai'i?

Apparently the new strategically planned model for PEG in Hawai'i is "Political Parasites, Propaganda, Predatory not-&-for-Profits, Education, and Government",  with more emphasis on the P, but too late for the Public. It's safe to assume the "P" will never stand for Pono. :'(

Jeff Garland
Hawai'i Public Access Media
Vice President, Community Television Producers Association (CTPA)

Laws Rules, and Procedures

Open Record Law Uniform Information and Practices (UIPA) CH 92f

Sunshine Law Chapter 92 

Department of Commerce and Consumer Affairs (DCCA) Practices and Procedures TITLE 16 DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS CHAPTER 201 ADMINISTRATIVE PRACTICE AND PROCEDUS

Ho'ike suit for misappropriated funds

Read the public documents yourself by clicking on the link Ho`ike suit for misappropriated funds

Summary Judgement: PEG's not state agency - Records not Public - OIP will not offer assistance obtaining records

June 15, 2005:

NOTICE REGARDING PUBLIC, EDUCATIONAL,

AND GOVERNMENT ACCESS PROVIDERS

The First Circuit Court recently granted summary judgment to 'Olelo in its lawsuit seeking a declaration that it is not an agency for UIPA purposes. No written order has yet been issued. However, based on the oral ruling, OIP will not be accepting new requests for assistance regarding 'Olelo or other PEG providers until further notice. OIP will provide updates on this issue as needed on this website http://hawaii.gov/oip/whatsnew.html