By Ray Chuan 4 July 2004
In trying
to rate how the current Council has performed so far and comparing
it with the previous one I discovered something quite interesting.
The previous Council – let’s call it the Kouchi
Council (Ron Kouchi being its chair for many years) - held
41 Executive Sessions during the two years of its last term.
The Asing Council, in office for eighteen months to date,
will have held 105 Executive Sessions by its next meeting
on July 8, 2004.
Further study shows even more interesting comparisons. The
Kouchi Council did not hold a single Executive Session during
its entire first year (2001) in office; and it did not hold
its first Executive Session until April 11, 2002.
As if responding to the criticism of its propensity for secrecy
by Andy Parks and the Star Bulletin’s Tony Sommer, the
Asing Council has intensified its pace in pursuing its Government
by Secrecy agenda in this its second year in office. By the
time the Kouchi Council just had its first Executive Session
fifteen months into its two-year term the Asing Council had
eighty-nine! In fact, the Asing Council seems to be entering
a state of frenzy in the last few months. On the one day of
June 7, 2004, the Council held THIRTEEN Executive Sessions
– listed on the agenda of that day as ES-131 through
ES-141, plus a repeat session on the celebrated Kilauea Leaky
Gym under ES-126.
An explanation for the feeding frenzy may be found both in
the date (near the end of the Fiscal Year) and parts of the
purported contents of the twelve items on the agenda for that
day in early June. Of the thirteen items eleven involved asking
for more money for “Special Counsel”, meaning
hiring outside lawyers instead of using the seven attorneys
we have in the Office of the County Attorney, and one for
money to hire a consultant to advise the Council on ”land
use/planning” issues.
The frenzy did not end with the June 7 meeting; four more
ES’s were held on June 24, all dealing in part with
money for “Special Counsel.” A curious part of
these secret items is that multiple separate requests for
money are asked for the same lawsuits against the County.
Let’s list these:
June 7, 2004
ES-131 $ for outside lawyers for the Leaky Gym at Kilauea.
ES-132 $ for Begley vs County.
ES-133 $ for Begley vs County.
ES-134 $ for Begley vs County.
ES-135 $ for Seto vs Freitas.
ES-136 $ for Wilson vs Freitas and for Seto vs Freitas.
ES-137 $ for Wilson vs Freitas.
ES-138 $ for Regasa vs County.
ES-139 $ for Regasa vs County.
ES-140 $ for workers comp appeals cases.
ES-141 $ for land use/planning issues.
June 24, 2004
ES-126 This is our old friend the Leaky Roof.
ES-142 $ for Kua vs County.
ES-143 $ for Lansdell vs County.
ES-144 $ for Takashiki vs Freitas (5th Circuit) and Taksshiki
vs Freitas (U.S. District)
The basic rule, as prescribed under Hawaii Revised Statutes
Chapter 92, says the Council can hold an executive session
closed to the public, but minutes must be kept of each such
session and be made available to the public when the need
for secrecy is gone, and decisions cannot be made at an executive
session. Some individual members of the public have asked
for and been denied copies of the minutes of executive sessions.
Whether decisions have been made at these sessions is not
known, especially when the content of the sessions deal with
money, such as all these lawsuits that require the hiring
of outside counsel and lawsuits that result in payments to
the plaintiffs by the County. In the latter category, only
damage to private vehicles caused by the County is dealt with
in open communications to the Council; but the amount of damage
is never revealed.
From time to time an item appears in the open agenda requesting
approval for money to hire outside counsel, the monetary amount
requested typically amounting to $300,000. The settlement
with former Police Chief George Freitas was never revealed
to the public, although the amount of the settlement was generally
rumored to be around $200,000. The County also agreed to defend
Freitas in lawsuits against him as the chief. Some of the
items cited above are no doubt in that category. Since all
these payments are not usually anticipated in preparing the
budget for the year, they have to be paid out of something,
somewhere. One convenient source appears to be the Un-appropriated
Surplus Fund in the Budget, the amount in this slush fund
generally running around five or more millions every year.
There is no explicit accounting of how this fund is created.
By following the Budget from year to year one could begin
to trace some of this money. The true amount will never be
known since neither the Mayor nor the Council would agree
to a detailed financial audit. Even when Senator Hooser offered
to help pass a resolution in the State Senate to authorize
the State Auditor’s Office to audit the Kauai budget,
our County declined to accept the offer.
The amount of money the County spends on outside lawyers every
year probably comes close to the entire budget for the Office
of the County Attorney which is around three quarters of a
million; but this money is not anywhere in the Budget. On
the other hand, if you look at the budget of the Police Department
you will see all the authorized unformed officers’ positions
listed every year whether those positions are all filled or
not. It is common knowledge that the Department has not been
able to fill around fifteen of these positions year after
year.
Logically the unspent money for these unfilled positions would
be banked somewhere, to be called for when some of those positions
are filled in subsequent years. But, no, every year new money
is authorized for those positions. Therefore, just out of
the Police Department budget alone, about three quarters of
a million is pumped into the Un-appropriated Surplus, to be
used for anything but Police requirements. A few years ago
a major chunk (around $750,000) taken out of the Slush Fund
was for building the Black Hole in Puhi, variously called
“The Puhi Metals Facility”, “Kauai Metals
Recycling Center” and whatever, the idea being such
a facility would attract an operator who sees the advantage
of a three-quarter-million ready-made facility for the processing
of junk cars so he would not have to build and charge its
use to the County. What actually happened was that a smart
operator from Honolulu was somehow able to secure a contract
from Kauai County to use the Puhi facility for processing
junk cars, and have the County pay him for using the County-furnished
facility, to the tune of over three quarters of a million
dollars a year! That is but one of the reasons the County
can never figure out what it costs to disappear a junk car.
So you see how the combination of the use of the Executive
Sessions in Council Meetings and the murky dealings through
the Un-appropriated Surplus Fund can hide or accommodate all
kinds of spending that this County Government doesn’t
want to tell or explain to the public, or to be subjected
to a true Financial Audit. I’m not accusing anybody
of corruption, just their inability, or unwillingness, to
shake off the culture of cordiality (not to rock the boat,
that is) among the officials, and plain laziness. Am I being
too charitable? We’ll let the unfolding of events emanating
from the public’s insistence on being told what goes
on in the secret chambers of the Kauai County Council, and
the unlikely launching of a decades overdue financial audit.
HAS THE NEW GRADING/GRUBBING ORDINANCE LAUNCHED THE CHANGE
OF CULTURE IN THE PUBLIC WORKS DEPARTMENT?
The handful of high-profile enforcement actions taken this
past year by staffs of the PW and Planning Deptartments gave
hints that thing just might be changing a bit. Too optimistic?
Maybe. But what else can you hope for? Miracles?
A signal event taking place at the June 24th meeting of the
Council when two members of the Public Works Dept –
Lawyer-cum-Civil Engineer/Deputy County Engineer Layde Martin
and staff member Mario Antonio – responded to questions
from the Council on the workings of the new Grading Ordinance
in intelligible language that actually conveyed some real
information, something that had never happened in the past.
I watched the event on Hoike, and was impressed, especially
with the answers given by Mr. Antonio to questions from Council
members. But I soon realized that, when Mario was asked specific
questions dealing with rules deriving from the new ordinance,
the Department was not working with any new Administrative
Rules, because it didn’t have any! Which meant that
the actual applications of the appropriate sections of the
new ordinance were left to the discretion of whoever was working
on a case.
My disappointment was further stoked when a friend who was at that meeting, and was sitting towards the rear of the Council Chambers, told me that he saw Lawyer Martin kick Enforcer Antonio several times during the latter’s testimony! The Hoike camera, of course, could not see what was going on under the table at which the two were giving testimony. I imagine the public probably will not see or hear any
future testimony from Mr. Antonio, unless he is coached before appearing before the Council, of course, in which event his lack of spontaneity would be quite palpable. Or the testimony from the PW Dept would be handled by Ms Martin alone, consisting of the type of sound bites she is skillful at dispensing, such as on the occasion of her report to the Council on the status of the Kilauea Gym Leaky Roof, when she confidently proclaimed “Our mission is to
have a leak-free roof!” That must be reassuring to the boy who broke his leg not long ago when he slipped on the wet floor in the Kilauea Gym.
In the mean time the Council is spending its time, when not in secret session, doing the work of the Planning Commission and the Planning Department in dealing with the huge development at Kukui’ula. The Council’s job is to legislate and to be the overseer to scrutinize and approve. Unfortunately, over the past eight years the planning side of the government has degenerated into doing routine permitting with a largely dis-spirited staff without any
leadership from the director or the Commission. It sounds great to have Jay Furfaro and JoAnn Yukimura expounding for hours over the past two months their great knowledge of housing needs and solutions; but that is not their job. Their job should be to pressure the Administration to put some life, some talent and the appropriate financial strength into the Planning Dept and the Housing Agency. These two critically important departments, on which the future of
the life of the residents of this island depends, have combined budgets less than one fifteenth that of the bean counters of the Finance Dept and only 3% that of the Public Works Dept!
In concluding this week’s commentary on the state of our island government I would like to ask Nitpickers like Andy Parks and Tony Sommer to join me and others to delve into this secret government stuff, because I believe there is gold to be found there.
Editors Note:Here are some links to more Ray Chaun:
Chuan Politics 1
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