INDEX - KAUAI POLITICS
www.islandbreath.org ID# 0507-05
SUBJECT: KAUAI COUNTY GOVERNMENT
SOURCE: RAY CHUAN email@example.com
POSTED: 1 September 2005 - 1:00pm HST
Government Secrecy always a problem
Interesting Comparison: Communist China & our Council
by Ray Chuan on 30 August 2005
While reading an article in today’s New York Times on the jailing of one of its correspondents in Beijing, China, I couldn’t help but be stricken by the amazing parallel between the authoritarian (some would say despotic) Chinese government and the County Council of our little island in the middle of the North Pacific. The Chinese government has this pathological obsession with its “State Secrets”; and over the decades has jailed, usually without trial, tens of thousands of mostly innocent people for revealing State Secrets.
The worst breach of State Secrets would be revealing them to foreigners, such as with the current case of a Chinese employee of the NYT Beijing Bureau who has been in jail for eleven months without trial. What strikes me is the comparison between the Chinese government’s obsession with protecting its “State Secrets” and our County Council’s incessant claims of “Attorney Client Privilege” in denying information to the public, as has been revealed in the current contest between some members of the public in Kauai and the County Council.
The other similarity in the behaviors of these two disparate entities is the obviously deliberate attempt at being obscure about the facts and, better yet, at trying to cheat by offering unspecified goods for very specifically constructed bill of charges. Such has been the case with the Council offering Walter Lewis and me certain records of Executive Sessions for a price. We were not told which Executive Sessions these records covered, nor whether contents in these records were to be redacted. But the bill of sale was very elaborately constructed, showing the regular and overtime hours spent by fourteen members of the County Clerk’s office searching, reviewing and segregating and copying the unspecified documents. The icing on the cake was that instead of charging us for the actual expenses, which totaled $4,993.00, the Council offered a discounted charge of $2,740.00. I guess when the government can manipulate the property tax revenue every year to create an increase of tens of millions of dollars every year the Kauai government can well afford to be so generous as to offer these two particular taxpayers a generous discount.
I must grant that the Kauai County Council is one up on the Chinese government when it comes to generosity in matters of finance. But these two ingrates are not
buying the deal! Instead, with the backing of the final opinion of the Office of Information Practices (OIP) that the County must furnish us all the requested records in their entirety, we will sue the County Council, knowing, alas, full well, that the Council has the deep pocket filled always to the brim with money exacted from the taxpayers of this county by the illegal manipulations of its Tax Code.
Every step along the way as our lawsuit wends its way through the judicial system we will be demanding from the County a full accounting of our money being spent to defend itself. We expect the appropriation of this money to pay the high-priced outside lawyers will be conducted in open sessions of the Kauai County Council.
What a tragicomedy this is going to be!
SUBJECT: KAUAI COUNTY GOVERNMENT
SOURCE: RAY CHUAN firstname.lastname@example.org
Pigs in a Poke
25 August 2005 - 7:15pm HST
Bizarre. Infuriating. Pathetic. Entertaining? Revealing?
by Ray Chuan on 24 August 2005
Yes, what Snow White and the Seven Dwarfs have been up to during the past week begs adequate description.
After reading the following attempt on my part of sorting through the communications between the County, the OIP and citizens Lewis and Chuan, please add your own descriptions.
On June 10, 2005 Walter Lewis and I sent a simple one-page letter to the County Clerk, requesting minutes of executive meetings of the Kauai Council, with copy to the Office of Information Practices. I reported to you in my July 12, 2005 missive that the County, instead of responding to our request by releasing the documents, as required by the Sunshine Law, asked us, in a letter dated June 30, 2005, to tell them where the Council did not follow the right process in convening executive sessions, and where the Council deliberated on matters in executive sessions that did not conform to what was advertised in the Council meeting agenda as the purpose of its going into executive sessions. Our answer to this first of a series of bizarre and perhaps entertaining missives from the County was that if we could answer those questions we wouldn’t have had to ask to seek the minutes of those executive sessions!
Some day, when this comedic exercise in civics is over, we should compile a volume of all the correspondence among Lewis/Chuan, the Council and the OIP, for the edification of future generations of voters and votees. But that may be some time off in the future; so let’s return to the present.
In the mean time, as is the practice of the OIP, it asked the County, in a series of letters, to provide the OIP with all the documents so that it can, as it is statutorily mandated to do, review these to issue opinions as to what parts of these records could be withheld from the public. The County, as one would expect by now, put up all kinds of irrelevant excuses to deny the OIP’s request for the records. In a letter to the County Clerk, the OIP, on August 12, gave what amounted to a final advice that the County must respond to the requesters with the minutes of the executive sessions the County Council held from January 2002 to the present.
The OIP further reminded the County that it has the “legal obligations and explicitly described the type of information that you should provide us if you denied the requesters access to the records…”, and further: “you simply have not established that one or more of the statutory exceptions support your withholding any of the requested records from disclosure. Accordingly, it is our opinion that all of the requested records, in their entirety, are public and must be disclosed to the requesters.” The OIP concluded its August 12, 2005 letter with “Lastly, given that you received the request for access to the minutes over two months ago and that your response, after a number of delays, was patently insufficient, we do not believe that any extension of time for you to provide the requested information to us is appropriate. If we do not receive the above described material by August 18, we assume that you will make the requested records available to the requesters without delay as required by the statute…”
What followed in two letters sent out, dated August 17, by the County to the OIP and to Chuan/Lewis (both over the signature of the County Attorney), illustrated, in stark arrogance, the County’s continuing efforts to obfuscate the whole issue of
The letter to L/C says:
“The office of the County Clerk has searched its files, and is ready to release copies of documents requested in Item 1. and not otherwise protected by applicable State and federal law. As authorized by Hawaii Administrative Rules ..., the following are the charges associated with your request:
Charges for searching, review, and segregation $2,740.00
Copying charges (577 pages) 146.75 Total = $2,886.75“
I have underlined the kicker in this paragraph. What it really means is that the Clerk is doing his own selection of what to reveal to the public. The whole point for having the OIP is that the OIP is the final arbiter of what could be kept from public scrutiny, and not the County. The deliberately obscure reference to our “request” only becomes clear when one reads what the County Attorney tells the OIP:
County Clerk to OIP:
“The attachments to this letter consist of logs of executive sessions from 1/1/02 to 6/10/05 and copies of redacted executive sessions minutes/transcripts with explanations of the redaction....”
The kicker again is underlined by me. Again, the County is deciding on its own what can be kept from the public eye, not the OIP as the law requires. What
this apparently confirms is that the County is only disclosing to Lewis/Chuan the un-redacted records of executive sessions; but without explicitly informing us of it, while intending to charge us for “unspecified merchandise”!
This is what Walter Lewis referred to as “the pig in the poke” in his yet unpublished letter to the Garden Island; and what I have been characterizing as the County’s “shell game.”
As for having the OIP review the redacted records, the County is asking OIP officials to come to Kauai to review these, blaming the “voluminous size of the
records” for wanting the OIP to do so. Yet, when you look at how many hours of regular and overtime labor by no less than fourteen members of the staff of the County Clerk’s office, for which they intend to charge Walter and me, they are either padding the numbers or their records are in such disarray as to require 156.25 hours of these fourteen staff over three days- August 12, 15 and 16 - to “search”, “review” and “segregate”. Fourteen workers for three days come to 336 hours; and they claim to have spent half of those working hours doing “searching, reviewing and segregating” to meet our request?! It had to be some or all of these situations in the County Clerk’s office to accomplish this miracle:
The fourteen workers have nothing better to do in attending to their normal duties.
There’s some serious feather-bedding in the Clerk’s office to have fourteen workers costing us taxpayers around $700,000 a year (including benefits).
There is no such thing as proper record-keeping, as certainly required by law, in the County Clerk’s office.
I used to think the Public Works Department of our county government badly needs to have some serious financial/performance audit. If the release of a bunch of “un-redacted” records is going to cost a bargain price of $2,886.75 there had better be an audit of the County Clerk’s office as well, which would be very unfortunate, since those of us who have been long-time observers of our county government operations have had nothing but the highest regard for the skill and dedication of the staff of the Office of the County Clerk.
The County will probably raise a stink about our knowing what the County Attorney told the OIP about meeting our request for records without telling us.
Anything to drag this on for months and months with all the skills of our County Attorney. From our standpoint one good thing that will come out of this is the continuing coverage of this show by the news media, a situation any responsible elected officials would certainly not wish to bring upon themselves.
But our elected officials apparently are so enamored of their perceived power that they would risk anything to keep the electorate from “wresting” any of that power from them, especially when it doesn’t cost them a dime to hire expensive outside lawyers out of their “deep pocket” financed by our tax money. So far the elected seven have not taken away the ability of the electing public to have access to the procurement records of this county, though I wouldn’t be surprised if they were to wrest that ability from us. I will, therefore, begin soon to report to you how much the elected are plucking from the Money Tree (AKA our tax money) to finance their campaign to keep the electing public from trying to “wrest” any power from them.
Keep tuned in! It’s going to be interesting as this show continues towards November, 2006.
SUBJECT: KAUAI COUNTY GOVERNMENT
SOURCE: RAY CHUAN email@example.com
More on Kauai's Seven Dwarves
13 July 2005 - 3:45pm HST
And update on the Adventures of
Snow White and the Seven Dwarves
by Ray Chuan on 12 July 2005
First of all, let’s sort out the various requests, responses and lawsuits surrounding the fundamental issue of Open Government. Hawaii Revised Statutes Chapter 92 (the Sunshine Chapter 92-1 Declaration of policy and intent). In a democracy, the people are vested with the ultimate decision-making power. Governmental gencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy – the discussions, deliberations, decisions, and action of governmental agencies – shall be conducted as openly as possible.
To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people’s right to know;
(2) The provisions requiring open meetings shall be liberally constructed; and
(3) The provisions providing for exceptions to theopen meeting requirements shall be strictly construed against closed meetings.
The current Kauai County Council, under the chairmanship of Kaipo Asing and aided and abetted by County Attorney Lani Nakazawa, has failed to comply with these simple and basic requirements of the law.
Under the chairmanship of Ron Kouchi, the Council went into Executive Sessions 41 times during the two years 2001 to 2003. Since the Asing Council took charge the frequency at which the Council went into executive session has accelerated significantly. The Asing Council adopted the same numbering system to designate these sessions closed to the public, beginning with Executive Session 42. In the agenda for the Council meeting on July 14, 2005 there are four executive sessions, ending with ES-187.
In other words, since Kaipo Asing assumed the chairmanship of the Kauai County Council the body will have gone into secret sessions one hundred and forty-six times by the end of this week! What more need we say?
The current spate of activities began with members of the public requesting the release of the minutes of the ES-177 (January 20, 2005) in April, 2005. To date the Council has not responded to the request, despite numerous communications from the Office of Information Practices (OIP), the state agency charged with the
responsibility of monitoring compliance with the Sunshine Law. Instead of complying with the Sunshine Law and releasing the information to the public the Kauai Council has filed a lawsuit against the OIP! The OIP has responded by asking the Fifth Circuit Court in Kauai to dismiss the County’s suit, on the basis of citations from various statutes which say, basically:
“…While a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other.”
The OIP further cites HRS 632-1 (1993) which expressly provides that where a statute provides a special form of remedy, that remedy shall be followed – the
“remedy” here being the release of government records to the public pursuant to the Sunshine Law.
The hearing by the Fifth Circuit on the OIP’s motion to dismiss the County suit is scheduled for August, 2005, at 1:00pm.
In the mean time, Walter Lewis (of Ohanal Kauai) and I have filed a request to the County Council for records on all executive sessions held since Kaipo Asing
became the chairman. The Council, as expected, did not respond positively to our request within the ten-working-day statutory requirement, thus setting the stage for what would likely be a protracted court action, for which we are fully prepared to pursue.
The County, in the person of the County Clerk, did communicate with us with a note that there would have to be some delay in releasing the records, because, I
quote here from County Clerk’s letter to us:
“In order to assist in identifying and searching for the specific types of records described in your inquiry above, I am requesting a further description or clarification of requested records in instances where you may have any knowledge whatsoever
1. Where the authorization of the executive meeting pursuant to the recorded vote of two-thirds of the Kauai County Council members did not occur; or
2. Where the discussions and deliberations of the Council at the executive meeting did not strictly conform to a lawful purpose or subject described in the notice of such meeting.”
After scratching my head in wonderment I asked the rhetorical question
“But that’s exactly parts of what we want to find out by reviewing the requested
Our reply to the puzzling request from the County Clerk concluded with the following:
“…Please advise how you expected that we might have information as to the discussions and deliberations of the Council at the executive meetings and whether they strictly conformed to the purposes or subject described in the notice of the meeting when your office has withheld such information from public view..."
This is getting weird! Some Prince Charming better come quick to the rescue of Snow White and the Seven Dwarves!
The amount of documents relevant to this open-government issue is increasing at some horrendous rate. Fortunately, Ed Coll has compiled the information on a website that will be continuously updated: http: //kauai.net/stauber/index.html which should help you keep up with the continuing misadventures of Snow White and the Seven Dwarves.
SUBJECT: KAUAI COUNTY GOVERNMENT
SOURCE: RAY CHUAN firstname.lastname@example.org
Kauai's Snow White & The Seven Dwarves
21 June 2005 - 9:45pm HST
Painting of Snow White & the Seven Dwarves by Scott Gustafson
by Ray Chuan on 16 June 2005
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 Dwarves 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 Dwarves 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 Dwarves 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 OIP develops in the coming weeks. The hearing for this case is currently scheduled for July 14.
In the mean time Snow White and the Seven Dwarves 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 Dwarves 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.
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 Dwarves 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.
SUBJECT: KAUAI COUNTY GOVERNMENT
SOURCE: RAY CHUAN email@example.com
More on Kauai vs State OIP
21 June 2005 - 9:00am HST
by Ray Chuan on 19 June 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 5:59pm, 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!
SUBJECT: KAUAI COUNTY GOVERNMENT
SOURCE: RAY CHUAN firstname.lastname@example.org
More county spending & secrecy
31 May 2005 - 8:45am HST
Rotunda of the County Building in Lihue
by Ray Chuan on 29 May 2005
Two events of some significance took place this past week...
Property Taxes & County Spending
On Sunday, May 22, The Garden Island finally completed its move to the Dark Side, with a front page article that took the Kauai County Government smoke and mirror act, line hook and sinker, including the oft repeated myth that the County has no control over increasing property value and therefore no control over property tax. It turned out to be no coincidence that Glenn Mickens' letter to TGI had the last two paragraphs deleted, and that my letter, which was in response to the Sunday Dog and Pony Show, was not published at all.
This is the deleted part from Glenn's letter:
A comment in the article attributed to an anonymous county official claims the tax increases are the result of 'higher assessments' that Baptiste has no control over. This contention is a myth our government has been trying to foist on the people for years. In fact, higher taxes are solely the result of higher government spending. If spending wasn't rising there would be no reason for tax increases. It is convenient for our officials that property values are climbing, it gives them something to blame for the tax increases but the real bogeyman for the higher tax burdens is rising government spending.
Our government officials don't want us to know about their insatiable appetite for spending and lack of cost controls. So the spin goes on for so long as we let them get away with it.
And this is my letter to the TGI on the issue:
Re: TGI editorial of Sunday, May 22, regarding our county's budget. Your editorial says: ''.The funds for what looks like a 20% jump in county spending is mostly coming from a jump in property values on Kauai, as reflected in property tax assessments".
When is TGI going to stop promoting this myth that our county government has foisted on the hapless property owners that assessment valuation increase relates directly to increase in property tax? This is absolutely not true! Not if our officials do their taxing honestly according to their own Tax Code. If there is not increase in spending and therefore no need for more property tax, all our officials have to do is lower the TAX RATES, so that the product of Tax Rate times Assessments equals the revenue needed to balance the budget.
Of course, our officials do a pretty good PR job by offering to lower the tax rates here and there, by a few percentage points. But with the assessments rising 30% and the tax rates decreasing by a few percents, the resulting tax revenue still rises by more than 20%. And that's the scheme this government of ours has been playing on us for years.
Do the other counties do the same? Absolutely not! Maui has had comparable rises in real estate values as Kauai over the past five years. Let's do some simple
Rise in property assessments from Fiscal Year 2002 to 2006:
Kauai: 65%; Maui: 65%
Rise in property tax revenue over the same period:
Kauai: 74%; Maui: 30%
Per Capita Real Property Tax Collection for FY 2005
Kauai: $1,020; Maui: $740
So it should be obvious by now that the reason our property tax is out of control is not because of property value rise; our tax rises because our officials have gotten very comfortable with increasing spending year after year through inefficiency and corruption and the outsourcing of services to outside contractors and consultants, while paying the same wages, with appropriate increases per labor contract, to the same employees but not demanding performance. I would not be fair to the Garden Island if I did not take notice of the balance of the editorial which includes the line:'We will see if the increased spending during the coming year means an increase in quality of our local government, and the capital improvement projects are being undertaken in a cost-effective and timely manner.' Indeed, we shall see; we shall see!
The bare facts are that the total planned spending of Kauai County went to what the Honolulu Advertiser characterized as historic high of $122 million, of which $66 million is the property tax revenue which also set the record that for the first time in history the real property tax revenue exceeds 50% of the total revenues. The Mayor made a big deal of giving the homeowners a break by cutting their property tax by $1.9 million. What he doesn't say, of course, that difference is made up by passing it over to commercial and resort properties, the owners of which will, of course, pass the increases onto their customers, including the homeowners. Of course, the increases are passed on to the customers in very small increments over the year, and thus not very visible.
What the Kauai County doesn't tell the public is that it has built up a substantial Slush Fund by not spending what is budgeted. According to the County Charter, and is the usual honest accounting practice, any money budgeted and not spent, lapses. But our County's Slush Funds stands at around $8 million this year. This allows them to do all sorts of things that are not on the budget ' like hiring a consultant, for $191,000, to expedite the issuance of a permit from the State to allow the County to keep piling trash past the original limit of 65 feet landfill height, or handing out hundreds of thousands (well beyond the budgeted amount of $300,000 for the year) to 'Outside Counsel', when we already have six or seven lawyers on County payroll.
It is interesting to note, by way of comparison, that Honolulu is struggling with trying to find around $3 million dollars to balance its budget. The solution to Honolulu's problem should be quite simple: Hire the whole Kauai County Finance Department. And they will never run short, ever!
Office of Information Practices & the County Attorney
The other matter of some legal, political and entertainment interests, is the length to which the County, being represented by its County Attorney (CA), has been trying to get the OIP (Office of Information Practices) to alter its opinion that Kauai County has on numerous occasions in recent months violated the Sunshine Law.
While there have been other cases of violations which the County actually corrected, apparently after Council Member Yukimura couldn't manage to change the law on the spot, the cavalier attitude with which this Council regards various laws is truly amazing, especially now that its membership includes two lawyers.
The high-profile Sunshine Law violations we will discuss here came out of executive Session 177, which took place on January 20, 2005. As with most such executive sessions the Council does not explain to the public the reason(s) for going into a session closed to the public. In this particular case the Council didn't really bother to follow the Sunshine Law to the letter, but simply took a hurried vote to go into Executive Session.
Some of this saga (or should I call it a Trail of Shame) was reported in the Garden Island which, as usual, screws it up by not getting complete story.
And, as usual, we depend on public citizens to get at the facts. As a matter of background, it should be noted that the practice of going into Executive Sessions (closed to the public) was not a common practice with this Council until Kaipo Asing took over as its chair in 2003. During Ron Kouchi's last term as Council Chair there were a total of 41 executive sessions. Since Asing took over there have been 143 such sessions! Just an example of the extreme quest for power and control over the public by the current Council.
This particular story started with the listing of ES-177 on the January 20, 2005 Agenda of the Council.
With the usual perfunctory treatment the Council voted to enter into executive session after some inaudible mumbling by a deputy county attorney. Since the announced purpose of going into secret session was supposed to discuss an investigation of the Police Department and some unspecified matter before the Ethics Commission, the chair of the Police Commission, Mike Ching, asked for a clarification from the OIP as to the legality of the Council going into executive
April 14, 2005. Letter from OIP to Mike Ching and the County Clerk (CC)
A review of the minutes of ES-177 indicates that the purpose of holding ES-177 was subject to debate between the Council members while they had already convened ES-177. a significant portion of the Council's discussion as recorded in the ES-177 Minutes involved what the Council Chair wanted to investigate and whether it was appropriate for the Council to be in executive session. These discussions should clearly have taken place prior to the Council voting to go into ES-177. The situation raises the question of how the Council can vote to discuss a particular issue in executive session when the particular issue has not been identified.
In other words, the OIP questions whether the Council should have gone into an executive session at all.
The OIP, on going back to some of the exchanges between the County Attorney (CA) and the OIP discovered the CA had plain lied in telling the OIP that the Council would be discussing matters involving ongoing investigation by the FBI and the State Attorney General, because the minutes of ES-177 showed no such activity:
The OIP concluded this letter with:
As it is OIP's opinion that, with the exception of certain attorney-client communications, the Sunshine Law did not support the Council's convening ES-177, it is our strong recommendation that the Council act to immediately remedy its violation of the Sunshine Law by making public the ES-177 Minutes, subject only to the redaction of those limited portions which constitute attorney-client privilege communications.
The message seemed pretty simple and clear: the Council shouldn't have gone into executive session in the first place, and should let the public have the records. Ah, but that was not the end of the story; but the beginning of a series of excuses, delays, obstacles on the part of the CA not to comply with the OIP's opinion. In the mean time, Mike Ching advised that he had no response from the Council. Richard Stauber reported similar treatment by the CA's office.
During that time the CA and her hired outside counsel (with apparently no authorized appropriation for hiring the outside counsel) went to talk to the OIP to try to change its mind, which takes us to the letter of May 18, 2005 from the OIP to the CC:
May 18, 2005 letter from OIP to County Clerk:
Despite our meeting and discussion with the attorneys representing Kauai County, we have neither amended nor are we reconsidering our April 14, 2005 letter in which we advised that the ES-177 minutes were public records subject to the disclosure requirements of the Uniform Information Practices Act (Modified), Chapter 92F, Hawaiian Revised Statutes (UIPA).
By failing to reply to the records requests, the Council is in violation of the requirements of sections2-72-13 and 14, Haw, Adm. Rules. Given the Council's ongoing and continuing violations of these rules, it is respectfully requested and strongly advised that the Council bring its actions into compliance with the requirements of the UIPA by immediately responding to Messrs. Ching's and Stauber's requests for access to the ES-177 Minutes.
That should be a clear and final enough, "No". Not with the persons we pay with our tax money to serve us! These clever people came up with some more excuses and delays in the following letter:
May 19, 2005 letter from the CA to the OIP:
By a copy of this letter we are advising Mr. Ching and Mr. Stauber that their requests for the transcript of item no. ES-177 will be placed on hold pending to you for reconsideration and a request for consultation on this matter by the Office of the Attorney General. The Attorney General has advised the County that it wishes time to review its statutory obligations, and will be in contact with the County.
In the mean time the OIP had had time to think about all the excuses our CA put forth, and wrote:
The following: May 20 letter from OIP to the CA:
Please be advised, as we informed you during our meting on April 29, that we are not inclined to reconsider our opinion as set forth in our letter to Mr. Michael Ching and Mr. Peter Nakamura dated April 14, 2005. The points that you raised during our meeting do not support a conclusion different from that set forth in our letter of April 14, 2005.
Moreover, the additional sections of the statute that you, for the first time, reference in your letter as supporting the Council's convening of the executive session are inapplicable. '..Your after-the-fact attempt to justify the Council's actions by citing other exceptions to the open meeting requirement does not comply with that requirement.
By now the OIP folks were probably getting frustrated dealing with these third rate lawyers from the Council. That letter was fired off on a Thursday.
Over the weekend they looked over the further delaying tactic of the County, and fired off this letter on Monday, May 23:
May 23, 2005 letter from OIP to CA:
Please by advised that neither the Uniform Information Practices Act (modified) (UIPA), Chapter 92F, nor the administrative rules implementing the statute allow an agency to place on hold' its disclosure of a requested record. As you know, we have declined your request to reconsider our opinion. We also do not agree that the Council may refuse to disclose or delay its disclosure of records required to be published because it wishes to consult with the Attorney General. The Office of Information Practices, not the Attorney General, is charged with administering the UIPA. We do not believe that any further delay is justified and do not believe that the Council should be able to further frustrate the public's right to the records by scheduling a meeting with the Attorney General.
In the mean time the County continued find new ways to delay making public the records requested, with excuses like the necessity of protecting privacy rights of individuals and asking the OIP to tell the Council what and how to redact information in the requested document. Getting pretty thin, but still trying. OIP responded to these almost silly requests with parts of this letter:
May 27, 2005 letter from OIP to CA:
If the County, in good faith, has questions about the appropriateness of withholding specific portions of the transcript, we are available to discuss the issue and provide guidance with respect to those portions of the record. However, in our opinion, the County has made no reasonable effort to respond to the requests for access to the transcript, and accordingly, we do not believe it is appropriate for the County to pass its statutory responsibility to us.
Given what the unreasonable length of time that as passed, we do not believe that any delay allowing access to the transcript is warranted and request that the record be available to the requesters by the close of business on Friday, June 3.
Well, that seems to be the last word from the OIP. What will happen next? The public will have to sue the County in court, most likely, for willful violations of the law. The County will, of course, use our money to hire more lawyers to defend itself.
For the public, the ultimate solution, of course, is to get rid of these bandits and their hired hands.
SUBJECT: KAUAI COUNTY GOVERNMENT
SOURCE: RAY CHUAN email@example.com
County Government Update
15 May 2005 - 7:30pm HST
The Old County Building on Rice Street in Lihue
by Ray Chuan on 11 May 2005
The meeting of the Council on April 28 was a disaster in more ways than one.
Three items on the agenda were of some serious consequence; but the meeting went from 1:00pm to 5:30am!
1. The approval of Carol Furtado to a second term on the Police Commission.
2. The approval of the Mayor’s request to dismiss Commissioner Gonsalves for his racial slur against the new Police Chief.
3. Approval of another $500,000 to the $375,000 already appropriated as the county’s 20% match for the construction of the Olohena Bridge.
Carol Furtado’s nomination for the second term had been on the Council Agenda since December 16 last year. Her interview by the Council was held in executive session, as had been the practice despite its being in violation of the Sunshine Law. With the persistent filing of complaints from folks like Richard Stauber the Council finally, after two executive sessions (in violation) finally brought the matter to the open session, which I reported on in an earlier report, noting particularly the prosecutorial form of the interview and the venom in the eyes of Council member Carvalho, a former County Prosecutor. In the end, with Carol not yielding to the inquisition despite the grueling treatment she had received in three or four sessions, the Council voted to approve her second term on the Police Commission, giving the Commission its full slate of 5 members.
The Mayor’s request for Council action on Commissioner Gonsalves was tendered in mid November, about a month after the disclosure of Gonslaves’ much publicized e-mail message.
As the Garden Island reported, there were numerous friends of Leon testifying on what a good guy he is, how well he served in the Police Dept and other parts of the county government, and that the “Hop Sing” remarks were a private joke allegedly common among the ethnically diverse population on this island. That part is probably true. But I testified that the remark went way beyond the realm of a private joke when it came out of a Police Commissioner who went beyond the private joke and the matter became one of public concern. I read from a copy of the infamous e-mail in my testimony:
“…..Tomorrow is the swearing in for Hop-Sing and Little Joe, I wouldn’t be there, Thank good (sic) I think I might throw-up. ………….” This message was sent on October 14 by Gonsalves to a friend in the Department who forwarded it on the next day; and the rest is history.
If Gonsalves had stopped at “..…Little Joe. …” it could have been argued that this was just a private joke. But the next two sentences gave intent to the arguably innocent racial slur, thereby making it a public matter, so I testified. The Mayor had said in his request to the Council in November that elected officials are held to a higher standard. But the response from the majority of the Council and Gonsalves’ supporters sounded eerily like the kind of remarks one might still hear these days coming out of Mississippi and Louisiana – namely, “It is us against them outsiders.”
It should be noted that both Police Chief K. C. Lum and his Deputy Chief are not from this island, just as the last chief, George Freitas, while from this island by birth, but had all his professional experience in California. One is obviously held to very high standards to be considered truly Local on Kauai. Lum is ethnically Chinese by birth, but was not born on Kauai and had grown up in a relatively cosmopolitan environment (away from Kauai, that is) before coming to this island. George Freitas, though of Portuguese descent and born on this island, did not meet the higher standards because his professional life was spent in California. One can readily understand why Lum’s swearing in was attended primarily by the younger officers (many no doubt not meeting the higher standards demanded by the majority of our Council) and none of the older officers showed up.
Thus, April 28, 2005 was a sad day for Kauai that will, unfortunately, return to haunt us when the Civil Rights Commission begins its processing of Chief Lum’s complaint. As I have mentioned before on a number of occasions, a further irony arising out of this is that more of our tax money, probably in the hundreds of thousands, will be spent by our County Government to defend itself.
The agenda item that took the longest time was the final approval of the appropriation of $500k for the Olohena Bridge. There had been heavy opposition from residents who must use that bridge in their daily activities; many of them came to testify at three earlier meetings and more on April 28. Council Chair Asing moved that item to a later time after some testimony had taken place, leaving the re-convening of the council for the continuation of the deliberations to take place late in the afternoon, leading ultimately to the closing of the session at 530 the next morning. This is a common trick used by Kaipo to discourage opponents to measures before the Council from testifying. He also frequently moves the agenda items to accommodate speakers or testifiers with whom he has no disagreement.
The bill to appropriate half a million dollars had been deferred, on April 21, to the next Committee meeting, which would have been on May 5, for committee approval before sending it to the full Council for final approval, presumably on May 12. For some strange reason the Council appeared to be very eager to have the final approval done on April 28, which meant the Committee would have had to meet some time before1 pm, April 28, instead of its regularly scheduled meeting on May 5. Ah, Kaipo’s ingenuity knows no bounds! He scheduled a special meeting of the Public Works Committee for the morning of April 28 to approve the half million dollar and forward it on to the full Council meeting that afternoon, assuming, of course, that the Committee would approve the measure in the morning of the 28th. Such is the confidence Kaipo possesses that he obviously had no doubt the Committee would approval it. He also figured that by scheduling a special meeting of the Committee the public would be unlikely to know about it and would not show up. He was right. There were only one or two people there. However, having caught on to the trickery by Kaipo the residents were able to organize a sizable appearance for the April 28 afternoon meeting of the full Council. But they didn’t fully appreciate the deftness with which Kaipo runs his Council meetings. By breaking the deliberations on this final meeting on this appropriation into two parts, with Part 2 not taking place till the evening, he successfully reduced the number of people who came to testify, although even then the meeting did not end till 5:30am.
One had to assume that there was some urgency for the County to finalize a very expensive $4.8 contract with the presumably successful bidder by the end of the week of April 28. The passage of the appropriation of $500,000 to make up the total of $875,000 as the County’s 20% match to the Fed’s 80% share assured the contracts people to proceed with finalizing the contract. The reason the Council, and specifically Council member Kaneshiro, gave for the astounding rise of the price for the dinky little Olohena Bridge, was the shortening of the time for completing the job from seven months to five months! I therefore went to the Purchasing Dept to ask to see all the documents pertinent to the Bridge job – the specifications for the several different stages of the procurement process over a period of several years, the bids and the final contract for the successful bidder. The head of Purchasing was most cordial and cooperative. After explaining the need for rushing through the preparation of the final contract he promised to meet with me as soon as possible to go over all the documents. For me this will be the first time since 1999 when I spent considerable time, with the cooperation of the Purchasing people, going over what turned out ultimately to be a failed procurement exercise to acquire the service of a waste processing facility that would take over most of the solid waste stream from going to the Kekaha Landfill, thereby extending its useful life. To explain the reason for the failed procurement would take much too much space here and would so discourage you from ever hoping to see some semblance of progress on this island that I would defer such a treatise to another time.
Back to the Olohena Bridge. If one were to go there the first time without any pre-conceived notion he would probably miss it altogether, for it appears to be nothing but some planks thrown over a gulch of some kind with heavily grown brush at both ends. If one were to stop to investigate he would find a dry gulch of uncertain width because of the vegetation, and there would be no flowing water in it. Yes, after a heavy rain you might see some running water. Compare that with the #2 Wainiha Bridge on the North Shore. W-2, which crosses a real perennial stream, is probably three times as long as the Olohena. It was a wooden bridge that began to fail last year, whereupon the State Dept of Transportation ordered from the catalog of a company in NJ by the name of ACROW a replacement steel bridge, which was shipped express in pieces to Wainiha, because the narrow road would not allow the transport of the whole bridge. From its arrival, which I believe was less that a month from the date when the partial failure of the old bridge was first reported, to completion of the installation took less than two weeks; and traffic was stopped only for two nights. The cost of that bridge was somewhere over two million dollars including the expedited shipping and installation.
Compare that with the $4.8 million price tag and closing of traffic for five months with the Olohena!! I had the good fortunate of meeting Eugene Sobecki, the National Sales Manager of ACROW last week when he came over to have a look at the Wainiha #3 bridge over the main branch of the Wainiha River. The Legislature and Governor had approved the money to replace the bridge, which has been there – as a temporary bridge – since the 1960’s. He had also planned to have a look at the Olohena Bridge, at the invitation of the residents of the neighborhood. His company also had the job of putting a bridge on the just started building of the new by-pass road not too far from Olohena. His assessment of the possible cost of putting a replacement Olohena Bridge in place in a matter of a few weeks, with possibly a couple of days of blocked traffic, was that his top estimate of the job would be just under one million. Hearing that from someone who should know, one must pause and puzzle even more over the $4.8 million five month job this Council is pushing frantically to give to a local contractor. Hence the efforts of a few friends to examine closely all the documentation pertaining to the Olohena Bridge. You will no doubt hear from us in coming weeks.
In the mean time, our elected officials continue to furnish us with proof that they have been violating the County’ Tax Code in collecting property tax. I guess they have been cheating us for so long, while keeping us from knowing how the tax system is supposed to work, that they are beginning to believe that theirs is the legal way, and thus do not hesitate to expose their illegal practice. I’ll have more to report on this possibly next week.
An item of interest in the newspapers today; and on the evening news on TV last night, was the sentencing by Judge Masuoka of the Fifth Circuit Court in Lihue on Thursday in the matter of James Pflueger admitting to ten criminal violations of the environmental laws of this state. The sentence was a fine of $50,000 for each violation and 6 months probation in lieu of 30 months in prison. Some background on this.
There are actually five actions against Pflueger for what happened at his planned subdivision at Pila`a in November, 2001, when intensive alterations of the land over the preceding years resulted in the massive collapse of a bluff fronting the ocean and heavy run-offs of mud and rocks down a stream bed into the ocean. The mud flow inundated the home of Rick and Amy Marvin on the beach. There are actually five actions against Pflueger. First there is the civil suit by the Marvins for damage to their home and the accompanying suffering and personal losses, which has yet gone to trial. There is a relatively minor Kauai County civil suit for certain violations of grading rules that Pflueger settled for a $3000 fine. The State of Hawaii, through the Attorney General on behalf of the Department of Health, filed an action for criminal violations of state environmental laws. This is the one that was finalized yesterday. There is also an on-going administrative action by the DLNR against Pflueger for damaging the coral reef at Pila1a. This has been going through a contested case hearing which reportedly will come before the BLNR for a decision on the fine, which may reach several thousand million dollars. Then there is the major civil case in federal court under the federal Clean Water Act, under which the fines can reach $27,500 for every day of a violation. With the possibility of several sites in violation for many days, this could rise up to a seven or eight figure number in the fines. This case is in mediation at the moment.
The federal case, as a matter of history, actually came out of the Marvins’ civil damage suit. Some of the lawyers observing the developing legal situation saw the possibility of mounting a federal Clean Water Act lawsuit, with legal support by Earthjustice, a public service law firm specializing in environmental suits, which was called the Sierra Club Legal Defense Fund (SCLDF) though it was not directly a part of the Sierra Club organization; hence the eventual change of its name to Earthjustice, an independent public law firm. I had worked closely with the SCLDF in the early nineties in fighting the military-industrial-university complex over the Boom Box project north of Hanalei Bay that we contended would injure or kill the whales and other sea creatures. By the time of the Pila`a disaster the group had evolved into the Limu Coalition, primarily over the issue of the twenty-year growth and proliferation of un-permitted tour boat operations out of Hanalei Bay. The Coalition and the Kilauea Neighborhood Association approached EarthJustice to explore the possibility of it representing the two non-government organizations (NGO) in a Clean Water Act suit against Mr. Pflueger. Fortunately for us, the Limu Coalition had had over the years generous financial support from a small number of individuals, which enabled us to commit to a retainer with Earthjustice to get the project launched. (It should probably be explained here that non-profit public service law firms, while not charging its clients for its legal services, generally do require a retainer that would cover the co-called “out-of-the-pocket expenses” in connection with a lawsuit. The NGO must have more than reasonable assurance that it would win the suit and thus recover its cost, as will the law firm. On the other hand, a protracted lawsuit could well exhaust the limited financial resources of an NGO. With the help of our benefactors, we took the plunge.)
We filed the required 90-day notice that we intended to sue in the summer of 2002. In quick succession, the EPA, the State of Hawaii and the County lf Kauai quickly joined the suit. The EPA, with the most clout, became the lead plaintiff. As in all such cases, the court ordered mediation before going to trial. And that’s where we have been – in mediation, now into the third year. It looks like it may be over in a few months, as all the issues, major and minor, are pretty well resolved. Pflueger will be required basically to return the land to its original condition – a major task of remediation that will last years and cost millions. The court will release the Consent Decree for a 30-day public comment, at which time I will try to convey to you as much of the details as is practical. So it is only two down and three to go. The next to close we hope will be the NGO-Government suit.
It’s been quite an education in several respects for me and my colleagues. Which is probably as good a point as any to bring this weekly message to a close.