by Andy Parx on 28 March 2007
DOGGED PERSISTANCE: Well, Sunshine week is over. It’s a yearly project of an MSM (mainstream media) consortium to convince you that newspapers and TV across the county are doing their job in demanding open meetings and records.
They tell us they’re cracking the case of illegal government secrecy despite gaping budget fissures in newsrooms across the country. The few investigative journalists left appear to be stitched together remnants of the recent corporate takeovers. Now they go to jail to hide the confidential identities of assorted, slimy, DC, political hacks, liars and thieves rather than protecting the usual whistleblowers and activists.
The AP and others report that Hawaii has one of the best open meeting and records laws in the country but is one of the worst in enforcement.
AP has always had a good grasp of the obvious.
But it’s no wonder everyone in Hawai`i government - both political and civil servants - gets away with flouting their non-adherence. Paternalism is was and will always be the chief ingredient in Hawaii’s political poke.
Despite the dozens of “official” Sunshine Law violations over the years, none have ever been enforced .
Until Recently.... well, sort of..
Les Kondo is the latest boss at OIP (the Office of Information Practices)- affectionately pronounced “oy-pee” as in “oy-vey”, a Yiddish term of lament similar to Auwae.
He just might have been the first director to ever read the actual Sunshine Law (HRS 92 /92F). So he pissed off a lot of people.
He tried to enforce the sunshine laws the way they were written. .
Bad move in Hawai`i where plantation mentality still bullies and intimidates those who upset the papaya cart.
OIP was set up by the legislature to provide an independent office to settle all disagreements about the Sunshine Laws by adjudicating cases when citizens can’t get documents or access to meetings.
And they’ve got an office full of lawyers to do the research and issue rulings.
Kondo came in and cleared up a 10 year backlog of complaints and then started responding to complaints in a timely manner ordering meetings to be open before they take place. not months or years later.
But if the meeting happens in secret anyway- then what? 40 paces at high noon?
Where’s the sheriff? Who enforces the OIP decisions? The very first thing the law says... is:
“92-12 ENFORCEMENT a) The attorney general and the prosecuting attorney shall enforce this part.”
Can’t get much clearer than that- The AG is the sheriff. Then the law gets better. If both the OIP and AG denies you your documents or meeting access you can go to circuit court which “shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy” adding that. “any person may commence a suit in the circuit court”
But Hawai`i AGs through the ages refused to enforce it.
When pinned down current AG Bennet and many of his predecessors run a misdirection play, in a bizarro world look at the law.
Bennet say the AG can’t do anything unless and until someone first files a lawsuit and then gets a judge to rule on the matter, the OIP be damned.
No investigations and certainly no calling in his deputy sheriffs to confiscate documents and stop illegal meetings before they happen. And even when officials refuse to follow the law on purpose the very concept of an arrest is laughable
The long and winding road to willful violations of the Sunshine law on Kaua`i runs through legendary County Council Chair Kaipo Asing who will readily admit the council has been doing it illegally for so long that they can’t and won’t stop now.
So the Council ended up suing the OIP in 5th Circuit Court to cloister the infamous “ES-177” forever, perhaps under the bleachers in Vidinha Stadium where other Council documents are sitting, rotting away. No joke- but that’s a whole other story.
A little history lesson. Seems there was this public-excluded “executive session (ES) 177” to be precise. A request for the minutes was the straw that broke the camel’s back for the already exasperated Kondo.
In early 2005 the Council held another of their illegal secret meetings, closing the doors to a humid, rain-soaked public in the halls of the old County building before interviewing a load of new prospective Widget Commissioners and Wodget Board Members.
Despite repeated and frantic warnings from the OIP demanding the council open the meetings to the public during the previous months, weeks, days, hours and even minutes before the meeting, the council refused to let anyone in.
There was also a stack of OIP “give ‘em up” letters sitting on the desk of County Clerk Peter Nakamura for various and sundry denied documents and meeting minutes and access.
All were in various stages of convoluted excuses, stalling tactics or outright disregard.
As fate- or hubris- would have it brand-new two-month-old, toddling baby Councilman Mel Rapozo seized the day of Council’s one-last-time triumph.
He took advantage of a scheduled afternoon ES to go on a rant about his former employer, the Kaua`i Police Department (KPD) according to OIP released letters back and forth with Asing and then County Attorney, Lani Nakamura.
Nakazawa and Asing also tried in vain keep the memos under wraps but OIP released them and many of the specifics and inferential characterizations contained made it plain what the content was and go a long way toward explaining Rapozo’s 180 on secrecy after his election and, more specifically, the meeting
The letters certainly leave open the possibility that Rapozo might have discussed his role as a Kaua`i Police Officer in the Monica Alves scandal of the 90’s where he was allegedly involved with other officers in the molestation a prostitute at the station house.
Rapozo left the department and was never charged with a crime, while other officers were.
The Alves matter is thought to be at the heart of the Rapozo/Carvalho vs KC Lum scandal and lawsuit.
The letters are Council records and are also available from the OIP.
During Rapozo’s first campaign he pledged that he would end all the illegal and excessive clandestine, cloak-and-dagger confidential confabs to which the Kaua`i Council conscribes.
But apparently Rapozo was relying on history. This is Kaua`i, after all. No ES had ever been made public and presumably none ever would be. Uncle Kaipo would make sure of that.
That “stonewall” even conveniently collapsed on a Honolulu Star Bulletin Kaua`i Bureau Chief costing him his job, essentially for being the first to promulgate a “give ‘em up” letter from Kondo’s OIP to the Council’s Clerk Peter Nakamura. He got the “go-to-hell, er, court” treatment from the AG and then sued the council - on his personal dime- to actually get the documents.... which were, by the time
he got them years later, uselessly ancient.
His final article filed– a fairly scathing indictment of the Council and their lack of adherence to the sunshine law in this and other cases- was scheduled for publication the day of his dismissal but was never published.
He eventually won his case as well as a handsome wrongful termination settlement from the Star Bulletin and, after selling his Princeville condo for many times what it cost at the height of the real estate bubble, took a pile of money back to an Arizona retirement after playing electric violin on Desolation Row.
So oye oye. Now comes the personage of Kaua`i County Council- vs OIP saying the legislature-designated legal entity that is there to tell them what to do can’t tell them what to do.
A no brainer for the judge eh? Well, not for Asing's “good friend” retiring Judge Gerald “Spike” Matsuoka.
According to many Kauai attorneys if there’s one thing Matsuoka hated it was being reversed. So the no brainer for him was to not even make a decision and kick it upstairs to the state Supreme Court.
He just refused to do his job- no court dates, no depositions, no arguments and, of course no looking at the documents and the law.
Instead in a stroke of “I don’t want to get involved” genius, Matsuoka decided that although he couldn’t point out exactly what in the law protected the document from dispersion, there must be a reason- somewhere, somehow, sometime, someway..
And now it’s in Hawai`i Supreme Court purgatory. The court traditionally maintains a black hole, taking years to even comment on, much less decide, cases – sometimes hoping against hope that the Legislature might change the law.
We may never hear from ES-177 again. And really it doesn’t matter. Because the real issue the standard release of all ESs as soon as their purpose no longer “defeat(s) the purpose of the executive meeting but no longer” (emphasis added).
That means that minutes of ESs should be routinely released as soon the lawful purpose no longer exists, purpose being defined as one of eight exception listed in HRS 95-5(a)1-8.
It’s not up to citizens to pay tens of thousands of dollars, as has been demanded in some cases, to do the work that the County Clerk or other governmental unit is supposed to do routinely.
As it stands, anyone, anywhere, in state government can do anything they please when the OIP says “give ‘em up” until Hawai`i Supreme Court rules. The OIP is back to being the toothless tiger it’s always been, now with the proverbial “Nowhere Man” Les Kondo at the helm of the Yellow submarine- making all his nowhere decrees, for nobody.
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