June 2005

Supreme Court justice faces boot from home?

A private developer contacted the local government in Supreme Court Justice David Souter's hometown in New Hampshire yesterday asking that the property of the judge – who voted in favor of a controversial decision allowing a city to take residents' homes for private development – be seized to make room for a new hotel.

read more at URL: http://wnd.com/news/article.asp?ARTICLE_ID=45029

Open Records=Informed Consent

Any democracy needs a systematic, fair process for implementing consent of the governed.

 In a press release this spring, U.S. Sen. John Cornyn (R., Texas) said, “Achieving the true consent of the governed requires informed consent, and such consent is possible only with an open and accessible government.”

But achieving the true consent of the governed requires something more than just holding elections every couple of years. What we need is informed consent. And informed consent is impossible without open and accessible government.

The default position of the government, must be one of openness – if records can be open, they should be open. If there is a good reason to keep something closed, it is the government that should bear the burden – not the other way around.

Not just in locally, but nationwide this spring, a “revitalization” of understanding of the open records and open records laws, commonly known as Sunshine laws, occurred. It was great to see a series of news articles and stories reminding us all how important these concepts are, because a movement away from openness has been apparent for some time.

We expect a lot from those that promise to be working in the publics best interest. We want them to be elected with fair and open procedures. Once elected, we want them to open be open and honest and to have high ideals.

If a person is described as having high ideals, there is sometimes the connotation that those ideals are unrealizable or at odds with "practical" life. I prefer to think of someone with high ideals as someone who should be exemplified and to whom others wish to be associated.

Hawai`i Sunshine Laws and Open Records Laws (HRS92f) should be followed as the Office of Information Practices (OIP) recommends. If there is a good reason to keep something closed, it is the County who should bear the burden as to why each item should be redacted. When an item is too close to call, then err on the side of openness.

Our County should release all executive session meeting minutes following HRS92 guidelines as OIP has recommended. Our county should set a high example of openness and transparency.

Deeply disturbing confluences of events

Item: Recent Supreme Court ruling allowing the government to condemn private property through immanent domain, not for a public use, but the highest private use with a public good. The public good – more taxes collected.

Item: The Counties opposition to the Ohana Amendment and the voting majority, (also called the will of the people).

Item: The County battle with OIP in defense of Executive Session transcripts as if they were top secret documents.

Item: The recent needless and repetitive use of the word “leaders” in The Garden Island. “KIUC leader”, “County Council leaders”, “OIP leaders.” Leaders this. Leaders that. Who are these people? Who decided they are leaders?

A conspiracy theorist might see these disturbing confluences of events as proof of a coup by the dark forces of self serving interests over a open and democratic society. It appears our elected representatives and non-profit volunteers have deluding themselves into thinking that since they were elected to “represent” us they are “leaders.” As our beloved leaders they fall further into delusion thinking. These “leaders” think they know what is best for the ignorant masses. These elected representatives think they know best because they meet in secret (executive sessions) so only they understand “the big picture.” What occurs in these secret confabs is not available to the public because the public does not have a need to know. Says who? Well, our all knowing leaders of course.

Could it be time for some tough love ballot box therapy to shock these people out of their delusional fugue state. Representatives who do not represent us and assume the role of leader, need to be brought back into the public fold and turned back into, “just plain folks.” Lets all work hard to help them see the light sunshine can bring to these important civic issues.

Further adventures of Snow White and the Seven Dwarfs

There is a very good article in today’s (Sunday, June 26) Advertiser entitled “The worst-laid plans” It’s all about the ineptness and corruption of the Hawaii State government. Everything said in the article applies to Kauai, only Kauai is worse.

In the mean time, Snow White and the Seven Dwarfs are continuing their wild dash to immortality. While singing “Hi Ho! Hi Ho! It’s Off to Court We Go!”, causing the following to appear in the calendar of the Fifth Circuit Court: “County of Kauai, et al. v. Office of Information Practices: Civ. No. 05-1-0088”, the Seven Dwarfs forgot to vote to file the lawsuit in an open session of the Council! For that matter, neither was there an executive session to discuss filing such a lawsuit. Even then, of course, the decision to file would have to be voted on in an open session of the Council. A pertinent question at this juncture would be “Has Snow White taken over command altogether?” It would be interesting to find out how she got all the Seven Dwarfs to sign on to the lawsuit against the OIP

Having skipped the decision process, however, Snow White did put in this week’s Council meeting agenda a Request for authorization to expend up to $100,000 from the “special counsel fund” to represent the County and County personnel and entities. Now that opens up another question, that of fiscal accountability. In the current fiscal year (which ends on June 30, 2005, the day of the Council meeting) the budget of the Office of the County Attorney list $300,000 for the hiring of “special counsel”. If you add up all the times the County Attorney has asked for such appropriations the total would long ago have exceeded the $300,000. To be procedurally correct, the Council should state that the money would come out of the “Un-encumbered Surplus” which was over $7 million in the Fiscal Year 2004-2005; and is believed to be over $8 million in the coming FY, this Slush Fund having grown from around $2 million five or so years ago to the current $8 million, apparently more than sufficient to cover such items as impromptu contracts to hire their favorite Honolulu lawyers, or one of their favorite consultants to pave the way for an easy permit from the State Dept of Health to allow the County to pile another 25 feet on top of the 65-foot high Kekaha Landfill, etc., etc,…

It is becoming pretty obvious that Kauai County has indeed a Deep Pocket when it comes to defending itself from, for instance, lawsuits from members of the public in this county, which leads to the Ultimate Irony that Kauai County’s Deep Pocket is financed by the taxpayers of this county! It would be very interesting to see how Kauai County vs OIPdevelops in the coming weeks. The hearing for this case is currently scheduled for July 14.

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In the mean time Snow White and the Seven Dwarfs have been very quiet about another Request (by Walter Lewis and me) that has come their way, asking for the minutes of all the executive sessions the Kauai County Council has conducted since the Kaipo Asing Council took over in December, 2002. The request was received by the Council Clerk on June 13, 2005; and the law requires that the Council respond within ten business days, which means the Council would have responded by June 25, which it has not. We have, therefore, notified OIP of this failure to respond. It is anticipated that OIP would presently ask the Kauai Council for the records of all these executive sessions (of which we believe there are over one hundred and forty by now) in order to review and render opinions thereon. Some of these we know for certain were held illegally, such as the interviews of nominees for various commissions and boards; and other secret meetings dealing with the spending of public funds. If Snow White and the Seven Dwarfs persist in denying the public what the law says the public is entitled to there will invariably be another lawsuit. We believe this is the only way the public on this island would ever learn how deliberately and illegally this council has not complied with the Sunshine Law; and that only through litigation can we hope to open up this utterly corrupt and arrogant government of ours. Success in such litigations would also, I hope, lead to financial and performance audit, which this county has never had, that would further expose the depth of deception and corruption in which this county government has been operating for far too many years.

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An ominous new development mysteriously promulgated by the Mayor surfaced this past week when Baptiste announced at a meeting of the Police Commission that the County Attorney’s Office is withdrawing all legal counsel and support for commissions and boards in the County of Kauai. No reasons were offered by the Mayor, nor did he reveal under what authority or custom he was making this decision. It is curious that this momentous announcement was delivered only at the Police Commission. Whether similar announcements will be made at other commissions, such as the Planning Commission and the Charter-mandated decadal Charter Review Commission, both of which obviously, by the nature of their work, need legal counsel at all times. The Mayor ‘s suggested (only suggested, mind you) substitute for the legal counsel present at the commission meetings is the installation of close-circuit TV between the commission meetings and the County Attorney’s Office, but without assigning any attorney to monitor the television coverage. According to the Mayor, the attorneys would attend to their assigned duties at the County Attorney’s Office, but would occasionally and casually glance at the TV monitor. This is almost laughable! What if some tricky legal question comes up at a commission meeting, but nobody is paying any attention to the TV while attending to their assigned duties? So a legal issue is created. Whose fault is it then?

A darker motive seems to emerge, in my conspiracy-dominated thinking, of course. Legal mistakes and problems arising out of commission meetings would give the Mayor and the Council the excuse to force through changes in the organization and membership in ways that would ultimately shift the real responsibility from these commissions to the Administration and the Council, in one giant step toward what I believe is the ultimate goal of the Snow White and Seven Dwarfs cabal to gain complete and absolute control of this county government. I believe the stage was set when the Mayor and the Council would not assign a lawyer to support the Charter Review Commission; delayed for months and possibly for good, any Hoike coverage of the Commission meetings; assigned, for many months, different meeting rooms for the Commission meetings so the public would lose track of when and where to go observe the Commission at work. In other words, keep the Charter Review Commission working in isolation from the public, to disable the effectiveness of the Commission so that any meaningful recommendations for changes in the Kauai County Charter – such as Term Limits and Councilmanic Districting - which we can be sure would be inimical to the interests of this mayor and this council, would never get on the ballots in November 2006. With the current Planning Commission and the current Planning Department, I suppose having or not having legal counsel would make no difference anyway, as the Commission, without any support in the way of the laws and rules nor the backgrounds of major issues from the Department, would just go on approving anything that comes along anyway. Sounds cynical but, unfortunately, too true!

With that, I come back to the theme I have been advocating for some time. The only effective way to correct the ways and the culture in which this government operates – most of the time against the interest of the public – is to take this government to court, directly or indirectly, even if it means having to suffer the ultimate insult of our providing the deep pocket for the government to fight the lawsuits.

On that note of irony I conclude this week’s report.

Ray

Ohana Kauai Website now online

Richard Stauber emailed Kaua'i Public Record to write that Stan Godes has launched a website for Ohana Kauai to track this issue.

Take a look at URL: Take a look at URL: http://www.ohanakauai.com/

OIP vs County

Sunday, June 19, 2005 An update on the continuing efforts on the part of the County Attorney and the Kauai County Council to thwart the public’s right to information. The simplest description of the situation is: It’s going from ridiculous to pathetic.

Our account of this sad saga on May 29 told of the OIP’s order to the County to open its records to the public by June 3, 2005, as well as to remind the County that OIP’s opinion regarding this matter had not changed from that expressed in its first letter on this matter on April 14, 2005. One thing seems to emerge, that the County Attorney’s diligence in attending to her perceived duty to serve the County of Kauai and its County Council is exemplary, and should be made known to all other County employees. Wasting no time after receiving another deadline set by the OIP for June 3, 2005, our County Attorney fired off another excuse to the OIP on that date.

In an earlier attempt at delays the CA had asked the OIP to designate what parts of the minutes of the January 20 ES-177 Executive Session should be off limits to the public, with the OIP responding that it should be clear to the CA, as the attorney for the Council, what parts should be considered not for public disclosure, that it was not the OIP’s job to do the Kauai CA’s chores. Well, as another attempt at delaying the inevitable, the CA in her June 3 letter again argued with the OIP over various irrelevant issues, and again asked the OIP to tell her what should be withheld from the public. This time the OIP, obviously getting pretty sick and tired, said, in effect, in its response on June8: “Okay, we’ll do it for you, just to avoid any further delay; but we question your motivation in asking us to do this.”

The OIP concluded its June 8 letter with:

“We do not believe that any further delay in allowing Mr. Ching and Mr. Stauber access to the minutes is justified. Given the limited amount of material that we believe may be segregated and the unjustified delay in the County’s response to Mr. Ching and Mr. Stauber, we believe that the County should make the minutes, minus the portion that we have identified, available to Mr. Ching and Mr. Stauber by the close of business on Thursday, June 9. Any further delay by the County in disclosing the minutes in accordance with our opinion cannot be considered to be in good faith. See Haw. Rev. Stat. § 92F-16 (1993).”

Ah, but the OIP still had not caught on to the infinite resource of our County Attorney!

Our CA fired off another letter to the OIP at 5:59 p.m., June 8. Hard-working people in our County Attorney Office, No?

This time the CA told the OIP the Council wanted some more time to provide the OIP with the Council’s position regarding the appropriateness of ES-177 – (which the County had been doing since mid-April, of course) The OIP reluctantly gave the County another deadline for June 14.

By now there is one thing you are pretty sure of; and that is the infinite resourcefulness of our CA. So this next missive from the CA to the OIP should come as no surprise to you. Nevertheless, this latest one is a real gem! The CA tells the OIP the County wants to explain its position as to the legality of its refusal to abide by the Sunshine Law. BUT, the CA wants what the County says in the letter and any attachments to be considered confidential and that the OIP must commit itself to maintaining such confidentiality. Here’s some of the OIP’s response in its letter to our CA dated June 17, 2005:

“Because of that condition, we have not reviewed the attachments to your letter. We simply cannot agree to the County’s condition that the letter and attachments are confidential. Absent a statute or other such authority, a state or county agency cannot deem a record to be confidential by agreement, contract or otherwise. All government records, including the County’s letter and attachments, are subject to disclosure under Chapter 92F, HRS. Accordingly, at your direction, we have not considered the County’s submission and are returning your letter and attachments to you. We have not retained any copies of either the letter or attachments.

Also, we note that your letter states that the County’s purpose in providing us with its position is “to attempt to compromise [its] dispute with the OIP[.]” Please be advised that we have no statutory authority to “compromise” or otherwise negotiate a “settlement” of this matter. Moreover, given the express policy of the Sunshine Law and the Uniform Information Practices Act (modified), we do not believe that either we or the County can “compromise” the public’s right to know. ……….”

Wow!! So, that’s how matters stood as of close of business on June 17, 2005.

As you wait, with bated breath, for the next episode in the Saga of the Kauai County Council and its County Attorney, let’s switch to a different topic.

With or Without Sovereignty Some Smart Hawaiians Do Very Well!

About three years ago there was a lot of excavation activities in Anahola, with crews digging long tunnels to bury what turned out to be fiber-optic cables. The cable, starting at Anahola, was to go all the way around the island to Kekaha. Part way around, the cable branched out to go under the sea to reach the other islands. Upon some inquiry I learned that this was a half-billion dollar project to bring the Internet to the Hawaiians living on Hawaiian Homelands on all the islands in this state. First established in the early 1920’s, these lands were supposed to be leased to Native Hawaiians to build homes on, with a target of 25,000 homes. Exact numbers are difficult to come by, but by 2000 there were somewhere around a thousand homes built under this plan, with a few dozen in Anahola. Upon inquiry with some Hawaiian friends I learned that even though this expensive system started in Anahola, the hook-up with the Internet was never effected, because every Hawaii home that wanted a telephone already had one installed by the regular telephone company, including connection to the Internet for those that wanted it.

All this came out of a move way back to bring electricity to rural areas in America which, among other big projects, led to the Tennessee Valley Authority. Further, as all the farm areas got electrified the feds decided they needed telephone service. So every phone user in the country pays a special fee every month to support this service to so-called “under-served populations”. Currently, every telephone user in this country pays about $2 a month into a Universal Service Fund. This naturally provides some fantastic business opportunities for some smart operators. In Hawaii the enterprise took the form of Sandwich Isles Communications which counts among its principal officers some of the more influential smart Hawaiians. One is also a trustee of Kamehameha Schools, one of the largest charities in the nation. Another is from the well-established Hee family, one of whose brothers is now a state legislator and, before that, a trustee in the Office of Hawaiian Affairs, while the other brother serves as one of the officers of Sandwich. Isles Communications.

A friend of mine with the Wall Street Journal heard about this great opportunity to build a financial behemoth out of the public dole, and tried to get a story on it in the WSJ, only to discover that U.S. News had already started on a story which, surprisingly, did not create much interest two years ago. Now, however, the Honolulu Advertiser has come out with a fairly complete story about this enterprise built upon the good hearts of the American consumers in its Sunday, June 19 edition.

The Advertiser’s research found that the nation-wide average subsidy for under-served telephone users is $130 per customer. For a farm state like Kansas the subsidy is $559 per line. For Hawaii – hold your breath – it is $13,641 per line! A hundred times the national average! And you really can’t work out the subsidy per line for Kauai since there isn’t any service even though the fiber-optic cable is there and there is even an office in Lihue, with a full time manager who is kanaka and a recently retired high official in the County government.

It looks like the hard-working kanaka like our friend Kane Pa and his colleagues, who set up banners and wave flags along Kuhio Highway day in and day out advocating for Sovereignty, ought to wise up and get in the communications business, and achieve sovereignty sitting in plush offices with no “under-served” customers.

Just out of curiosity I checked my phone bills and discovered the following:

Verizon land line – Universal Service Fee = $0.73
Verizon DSL – Federal Universal Service Fund Recovery Fee = $2.88
Sprint Long Distance – Carrier Universal Service Charge = $1.41
Cingular Wireless – Public Service Tax = $1.78

Total, each month = $6.80

Yikes!! I didn’t know I was such a great philanthropist?!

Enough for now!

Ray