February 2006

Looking for Sunshine: Protecting Your Right to Know

Looking for SunshineThe League of Women Voters Education Fund has created this Resource Guide to assist Leagues in dealing with this era of increasingly difficult public access to government information. This guide provides an overview of the most significant federal and state laws—those that protect and those that restrict public access to government information. It also suggests various ways that Leagues can become more active in this area, and identifies other national and state organizations involved in these issues.

Looking for Sunshine Resource Guide

Solid waste and Consultants

Here we go again! Another committee to study Kauai County’s solid waste problem!

Let’s go back a decade or so to recall what all has been happening with this perennial topic that seems to accompany the prelude to the re-election campaign of our esteemed officials. A good point to start is probably the time when this county ceased to have a qualified person to manage or solid waste operation. That would be near the end of the JoAnn Yukimura mayoralty and the beginning of the Kusaka reign when the Young Untouchable took over the SW operation, having been transferred from the job of an electrical engineer in the Public Works Department to fit the job of a civil engineer for which he was not (and still isn’t now) qualified, although her majesty did promise to send the young man to school (while on the job) to get qualified – which she never did. Before JoAnn left office she paid out $150,000 for what became the Kauai County Integrated Solid Waste Management Plan – 1994. You get the impression that nobody in this government can do anything substantive, but has to hire a consultant to do everything. I became interested in the subject around 1997, when I went to the Young Untouchable to borrow a look at the 1994 Plan. As far as I could gather, there were just two copies of the Plan extant at that time, one copy being the one I borrowed from the Y.U. and the other copy was in the hands of then County Council member Randall Valenciano. Of course, nothing was done by the county to implement the Plan. Mayor Kusaka had her appointed committee to study the SW problem. It seems that the politicians believe that they must proclaim their dedication to solving this island’s SW problem in order to win at the next election. So it is almost formulaic at this time of the election cycle to hear a lot about doing something about SW. Actually, Kusaka came closest to finding a solution by having the Y.U. send out a significant number of requests for proposals in 1999 to have some company come in with a viable plan to divert a large part of the 120 tons/day of waste away from going to the Kekaha Landfill. The procurement process actually went as far as having a well attended public meeting at the Convention Center where five qualified bidders presented their plans. Four of the five had established record of building and operating the kind of facility the county was looking for – two German, one Canadian and one American company. The fifth one was Gay and Robinson from Kauai which proposed using waste plant material from cane harvesting along with municipal waste to generate electricity while reducing the flow of waste to the landfill. The beauty of the four off-island bids was that it would not cost the county a penny to design and build the facility; the bidding company would do all that, with a commitment from the county to take all its solid waste to the completed facility which would charge the county a fee based on the tonnage. All four bidding facilities would produce some by-product that would be sold. If I remember correctly, two of them would produce energy as a by-product, one would produce fertilizer and the fourth building material. The emphasis was not on the by-product, but what percentage of the solid waste input would be left at the end of the processing and would have to be taken to the landfill. The by-products were never considered the primary income-producing part of the facility. This is where our county’s officials have always had it all wrong, by touting the by-product as the primary benefit – hence always the talk about waste-to-energy process. It never penetrated their thick skulls that burning all the solid waste on this island would produce about 5 megawatts of electric energy, adding at best 5% to the electric generation on this island. In the minds of our naïve officials there is always the Magic Bullet that would dis-appear all the trash and produce all kinds of energy; and that was what attracted the attention of an outfit that at that time called itself Plasma Arc, a company that never had an operating facility and no credible data to show that it would accomplish the Magic it promises. But that’s how smart operators can take dumb officials for a ride. In our case in 1999 Plasma Arc was not selected to present its proposal to the Kauai public, for the simple reason that it had nothing real to present. Instead of just going away Plasma Arc threaten to sue to the county for not including it as one of the qualified bidders. Our County Attorney, as ignorant in technical matters as it is today, got scared by the threat of lawsuit and cancelled the procurement. That was as close as this county ever got to solving its SW problem. The Administration then asked for another $165,000 to do another procurement exercise which, as could be expected, attracted no bids. How that $165,000 was spent was, of course, never revealed. There then followed a couple of rounds of “studies” (by consultants, of course, since this county never seems to have anyone who can do anything) to find a landfill to replace the about-to-be-topped-off Kekaha Landfill. Only two sites studied were considered viable; but they were both in private hands; and the county did not want to go through any condemnation. Instead, there began talks about putting a new landfill in Hanamaulu, which ran smack into the Environmental Justice doctrine that had been proclaimed by Pres, Clinton in 1994 to stem the massive migration of chemical plants from the East and Mid West to the South to escape the mounting legislative opposition to dirty industries in the North. Following is the statement regarding Environmental Justice issued by the EPA:

“EPA defines Environmental Justice (EJ) as the ‘fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies.’ Over the past decade, attention to the impact of environmental pollution on particular segments of our society has been steadily growing. Concern that minority populations and/or low-income populations bear a disproportionate amount of adverse health and environmental effects led President Clinton to issue Executive Order 12898 in 1994, focusing Federal agency attention on these issues. EPA responded by developing the Environmental Justice Strategy which focuses on the Agency’s efforts in addressing these concerns.”

I mentioned this to some of the leaders in the Filipino community in Hanamaulu. Some words got to the Council and the Administration; and the idea of putting a landfill behind Hanamaulu was promptly abandoned. Kusaka spent some more money to buy another round of studies; and formed a big committee headed by one John Love which did nothing, and did not even issue a report. Then came Mayor Baptiste who, of course, as he approaches the election for his second term had to form his Committee to solve the SW problem. As with the Kusaka SW Committee, there are very few members with any knowledge of SW issues. As a matter of fact, of Baptiste’s fifteen some members only two can be considered to be knowledgeable. One, Jeff Kaohi happens to be the manager of the contracted operation of the Kekaha Landfill; the other, Jean Camp, has a technical background on the Mainland before she and husband retired to Kauai where she became, for a while, a consultant to Mayor Kusaka. But, hey, two is better than zero with the Kusaka SW Committee. For this island anything more than zero is cause for celebration! Turning the operation of the Kekaha Landfill to a private contractor (in this case, the largest company in the nation – Waste Management Inc) is probably the smartest thing this county has ever done. A logical next step would be to outsource the entire solid waste operation, while sending the Y.U. back to electrical engineering. But what would our officials do with their friends the Consultants?

The Role of the “Consultants” Consultants occupy an important position in the operation of our state and county governments, probably more so than on the Mainland. Here is a good example.

Our Y.U. Chief of the Solid Waste Division of the Public Works Department of this county received a rather alarming communication (dated November 5, 2004) from one Steven Chang, Chief of the Solid and Hazardous Waste Division of the State Department of Health. Subject of the communication: Incomplete Permit Application Kekaha Landfill Phase II Vertical Expansion to 85 feet

A little background material is needed here: By the fall of 2004 the earlier permit from the state to fill the Kekaha Landfill to a height of 60 feet was expiring; and the county had applied for a permit to add another 25 ft. It should be noted here that the DOH had been extending the height of the Honolulu landfill time after time until the city was recently fined $2.8 million for illegal dumping. Prior to this, two officials from the DOH had been charged with corruption about two years ago by the Environmental Crimes Unit of the State Attorney General’s Office. One had gone to trial, and had been given a light fine and probation, which elicited a protest from an environmental organization, which had initiated the investigation, that the sentence was too light.

The letter from Chang was rather alarming to two of the newer members of the Kauai County Council – Mel Rapozo and Jay Furfaro, who brought the matter up at a meeting of the Council, as it appeared to these two members the state might shut down the Kekaha Landfill if the county did not re-submit the permit application to remedy all the defects. At the November 18, 2004 Council meeting a group of five persons were invited to give testimony on this perceived crisis. The five were: Kaohi, the manager of the Landfill, the Y.U. chief of the Solid Waste Div, two members of the staff of Mr. Chang of the DOH and a representative of Earth Tech, the consultant to the SW Division. Records, including the Hoike video record of that meeting, would show that Councilman Tokioka did almost all the questioning of the witnesses. Those present at the meeting soon noticed, as the deliberations proceeded, that the questions from the Council were loaded and that, upon hearing a question, the five witnesses would exchange quick glances at one another, and one of them would give the answer. Tokioka explained to the witnesses that the Council was very concerned with the problem, so much so that it had authorized an appropriation of $93,000 to help remedy the deficiencies in the county’s application for the permit to add another 25 feet to the Kekaha Landfill. (Note: There was no record of Council action, prior to this meeting or after this meeting, to authorize the spending of the $93,000.) As the exchange between Tokioka and the five proceeded there was a definite lessoning of the tension or alarm among the Council members. Soon everything seemed to be just fine; everyone was relaxed; the Council thanked the five and went on to other matters on the Agenda.

On January 13, 2005, the DOH published a legal ad in the Garden Island noticing the DOH’s intent to issue a permit to Kauai for the 25-ft expansion of the Kekaha Landfill and asking for public comments. It turned out I was the only person to submit a two-page letter of comments which the Kauai County Deputy County Engineer Ladye Martin (who, by the way, is not an engineer but was a lawyer on loan to the Public Works Dept from the Office of the County Attorney) summarily dismissed as being irrelevant. Similar rejection of my comments was issued, in a letter dated March 23, 2005, by Thomas Arizumi, P.E., Chief of the Environmental Management Div of the State Dept of Health. Mr. Arizumi further notified me that the DOH was proceeding to issue the permit. It is interesting to note at this point in the chronology of the expansion of the Kekaha Landfill that the County of Kauai issued an amendment to the contract with Earth Tech, the consultant to the Solid Waste Division, on February 2, 2005, to add $287,000 to Earth Tech’s contract. The purpose of the amendment was stated as the “Close-out” of the Kekaha Landfill. (Not the expansion of the landfill.) As far as I am able to search the records, the appropriation of this sum was not acted upon at any County Council meeting, nor does this item appear in the published Budget for the Fiscal Year July 1, 2004 to June 30, 2005, or the Fiscal Year July 1, 2003 to June 30, 2004.

It is also interesting to note that the proposal, by Mel Rapozo, for action by the County Council to perform an audit of the Solid Waste operation was rejected by the Council last week.

I suppose it doesn’t take much imagination to figure out what is going on here. What’s more, there is talk now to go further with added still more trash to the Kekaha Landfill by filling the space between the old Phase I Landfill and the current Phase II Landfill. A stand-alone landfill looks like a truncated pyramid. When you put two of these side by side you’ve got an inverted pyramid in the space between them! That should be interesting! With something as novel as this one can bet the DOH would certainly give another permit! Especially with the help of a consultant.

On the other hand, with the doubling of the investigative staff in the Attorney General’s Environmental Crimes Unit, things could develop differently. Until recently the ECU had only one Special Agent; now there are two Special Agents.

Controversy and Charter

At the root of the controversy swirling around the Police Department is a reality that shows its face regularly in county government; i.e. the failure of county officials to understand how the charter can be a positive force in preventing and resolving such controversies. They try to govern on the basis of emotion and good intentions. They turn to the charter after the damage is done, and then only to look for legal solutions. This is a recipe for confusion and ultimate failure.

There are three levels of authority in the charter: moral authority, intellectual authority, and legal authority. Legal authority is the authority delegated by the sovereign people through the charter to county officials to empower them to carry out their duties. But legal authority is the narrowest of the three, and when governing is reduced to legalisms it becomes mere authoritarianism. Moral and intellectual leadership is more fundamental in a democratic system than the narrow exercise of legal authority.

Two sections in the charter illustrate the point. Section 7.05A empowers the Mayor to see that all administrative activities are conducted honestly, efficiently, and lawfully. Honesty points to moral leadership. Efficiency points to intellectual leadership. Lawfulness refers to leadership with respect to delegated authority.

Section 7.05K empowers the Mayor to participate in the proceedings of all boards and commissions, with voice but no vote. The Mayor's legal authority with respect to the Police Department is severely restricted by state law and the charter. The Police Commission appoints the Chief and oversees the operations of the department. However, 7.05K allows the Mayor to exercise unrestricted moral and intellectual leadership in the department. He is free to sit with the Commission and the Chief in a public forum, not primarily as an authority figure but as an advisor and advocate. (Democratic leadership and transparency go together, just as authoritarianism and secrecy go together.)

However, 7.05K reflects a flaw that is pervasive in the charter. The section does not define the Mayor's responsibilities under 7.05K. The Mayor and his assistant interpret 7.05K as conferring a privilege which they are free to exercise as they choose. As a result, the Police Commission and other boards and commissions regularly meet without benefit of moral and intellectual leadership from the top. When did you last see the Mayor or his assistant sitting and dialoguing with a commission, not as authorities but as leaders? Would it have made a difference in the current situation if they had sat with the Police Commission and the Chief on a regular basis to provide the leadership implied in 7.05K?

Council members generally seem to share the administration's narrow view of the charter as a collection of rules to be invoked after the damage has been done. Do they also fail to see that the breakdown in communication now being attributed to the Chief is not confined to the Police Department? Such breakdowns are a widespread and near-inevitable outcome of the failure to understand and utilize the charter as a positive force in governance. Correcting the situation can only originate with elected officials.

Horace Stoessel