Letters for Tuesday, January 5, 2010

• Taser-use justified

• Year of conflicting ethics: ‘Together we can’t’

Taser-use justified

I wasn’t surprised to see on the front page of The Garden Island on Dec. 28 “KPD Taser policy a work in progress.”

I knew when the KPD was issued the non-lethal devices people would make a big deal out of it. The same people that make a big deal when officers are forced to discharge their fire arms in the line of duty.

These are the types of people that are always looking to tie law enforcement’s hands. They complain that guns are lethal and then they complain when less than lethal devices are provided to law enforcement. There is no winning with these people. I do not feel that the KPD needs to justify their use of the Taser on Le Beau Lagmay. This was a big guy, a trained fighter who was allegedly under the influence and threatening the lives of officers.

For Kalaheo resident Jonathan Jay to claim KPD risked massive liability by using the Taser to subdue the suspect is ridiculous. What would he and others like him be saying if the KPD did not have Tasers and were forced to use lethal force?

Dan O’Flaherty, Kalaheo

Year of conflicting ethics: ‘Together we can’t’

In January of 2009, I promised the people of Kauai as a Board of Ethics (BOE) member to uphold the Charter and hold myself, my colleagues and all officers and employees of the county accountable to the Code of Ethics.

Mayor Bernard P. Carvalho Jr.’s appointment of me to the quasi-judicial body paid dividends to a public hungry for action beyond political rhetoric. I delivered to you what you deserve from a BOE member — integrity, openness and a political will to enforce the law.

In my single year on the BOE, your view into government achieved unprecedented depths by release of four County Attorney opinions and a significant change in policy regarding the county’s disclosure statements and an advisory opinion given to Charter Review Commissioner Mattie Yoshioka that now correctly supports the plain meaning of Charter Section 20.02 (D). In response, several county commissioners have chosen to resign their posts. These important works and corresponding news stories can be read in detail in The Garden Island, at www.kauaiworld.com/sunshine and parxnewsdaily.blogspot.com. Yet these significant strides were achieved at a cost.

My cost came in the form of an ousting from the board. Conviction and oath to preserve the Charter soon aligned me against BOE colleagues, mayoral appointees, the Office of Boards and Commissions (OBC), the County Attorney (CA) and apparently Mayor Carvalho himself, who inexplicably refused to reappoint me to the board for a second term.

Perhaps I should have read the writing on the wall my first day.

During Council’s approval interview, Councilman Dickie Chang questioned whether I would be writing letters to the editor of The Garden Island while on the BOE. His suggestion was that I should not. This concept, to muzzle a basic tenet of our Constitution, struck me with insult and my response, received solemnly, addressed my First Amendment Right to free speech— a right I enjoy liberally. The law says ethics members are only restricted in political campaigning. Not a problem — for me.

Or that the writing was on the wall within weeks of my appointment when I was encouraged at a Charter Review Commission meeting by OBC Administrator John Isobe to seek out a job in the administration, a computer position with the County (I did not). Or that Mr. Isobe would on several other occasions try inappropriately to influence me — once, when I requested public documents that could expose members of the administration and commissions he asked that I not share the documents with anyone, and later calling me to meet in his office “to see how things were going” but to actually express his desire for the BOE to reach a “super-majority or unanimous-vote only for release of County Attorney opinions to the public.”

That writing on the wall should have been clear enough months before as the only piece of advice I received from Interim Mayor Kaipo Asing during my 2008 mayoral campaign when he told me, “Don’t rock the boat.”

Why I refused to comply with these things can be explained simply: because to do so would deny you access to the workings of your government and I swore to uphold the law.

Early as an BOE member I contacted newly appointed County Attorney Al Castillo with documentation received from various sources including the county that I determined clearly showed dealings to oust 20.02 (D) from the Charter and a case to uphold the plain meaning of Charter Section 20.02 (D) “No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency.” 2008 had already seen contention between an angered public and the BOE regarding 20.02 (D) then again when the voters rejected change to this Charter section that November.

The voters overwhelmingly supported stricter guidelines by voting down a proposal to allow board & commission members ability to represent private interest before other boards and commissions. In other words, the citizenry likes the prohibition as it stands— I agreed, despite what a colleague said about voter “knee-jerk, over-reaction”. I believe the voters got it right.

If the voters had passed the changes to the law, none of the following would have occurred, yet little did I know at that time my involvement in county government would soon ignite a firestorm.

In April of 2009, Castillo told me he had meetings with Kauai Circuit Court Judge Randal Valenciano on several occasions concerning 20.02 (D) and that it was clear to him that attorneys like Charter Review Commissioner Jonathan Chun (or later, Lorna Nishimitsu) who represented clients for pay before other commissions were indeed in violation, but Castillo drew the line there. This ethics law would not apply to other non-paid individuals he told me. I questioned him about the failed ballot measure in November 2008 that would have relieved “the other non-paid individuals” (county board and commission members) and the potential for quid pro quo amongst county officers/ employees but Castillo failed to convince me even then, long before our public conflicts stemming from three ethics complaints I’d file later in May 2009 against BOE Vice-Chairman Mark Hubbard and Judith Lenthall and Cost Control Commissioner Lorna Nishimitsu for violation of 20.02 (D).

Castillo for the first time referred to an obscure 1976 Michael Belles document to help make his case, that, upon investigation, mistakenly declared that the “county code interprets the Charter.” No. The code can only supplement, it in no way interprets, yet Castillo would sell this concept like his predecessor to a majority of BOE members with past mistakes to protect.

To counter this I challenged the BOE to examine supremacy laws.

At the time of my first approaching Castillo, the possibilities for positive change in the county were real, many folks who paid attention to such things were hopeful after long years of dismal results and secrecy from prior County Attorneys. BOE attorney Margaret Sueoka, fired by Castillo and replaced by Mona Clark and Mauna Kea Trask, filed suit against the county. Nobody complained of Sueoka’s absence. But, the fact that many of the old-guard remained under Carvalho, like Lani Nakazawa, should have clued us into the fact that nothing significant would change in the CA’s office. Yes, we would see some new faces, but…

Now, in retrospect, Castillo made things worse for the BOE than his predecessor. Not only would he scam you with old-school tact like recycling an old opinion into a “new” one with the same confusing outcome, but he’d bully you, too, like telling you that you must comply with his opinion or risk personal liability. This was not your grandfather’s CA — or maybe it was.

What’s most confounding to me is the vast confusion and conflicting opinions coming out of Castillo’s office concerning those 21 plain words in 20.02 (D). Castillo reversed himself from our April discussion and it appeared to me he was making a bid to wipe the books clean of 20.02(D).

All three attorneys that served BOE in 2009: Mona Clark, Mauna Kea Trask and Castillo did an unconvincing job cajoling the board with outlandish arguments, for example “this is the way our county has done things for decades” and “perhaps that sort of thinking applies on the mainland”— insults of intelligence even to the dullest mind in an argument against upholding plain law to protect a handful of politically privileged associates, campaign supporters and a majority board membership mired in past mistakes. Worse, out of the newly interchangeable-counsel-triplet, supported by the majority BOE membership came a spinning of such fantasy yarn as to confuse plain meaning and basic supremacy law: Castillo and Trask particularly embraced aforementioned “county code interpreting the Charter”, “Charter cannot be read in a vacuum” bizarre scenarios conjuring “a chilling effect” on the county that “upholding 20.02 (D) would create ‘absurd results’ which would keep county officers and employees from applying for building permits, driver’s licenses and camping passes”— all this obscure nonsense in the face of actual, legitimate complaints against three county officers violating a clear prohibition in the Code of Ethics.

The public, outraged and dumbfounded, quickly identified Castillo’s dirty tricks and doubletalk and The Garden Island newspaper among other outlets reported it frequently. I was pleased to fight Castillo’s rubbish all the way, but it cost me.

After an unceremoniously dumping in December 2009, I asked the mayor what I was supposed to do as a sworn BOE officer when witnessing at Council Budget Hearings and a Budget Committee three county officers violating Charter 20.02 (D). Was I supposed to do ‘what has been done for decades’ by turning a blind eye?

I told the mayor, I couldn’t do it.

Disappointingly, he responded woodenly. A puppet’s recital: “…my commissioners need to work together as a team… I am looking for balance… it’s not about me… you shouldn’t take this personal.” It reminded me of a short, unsatisfying conversation I had with Councilman Daryl Kaneshiro a year earlier— he too was not smitten with the concept of a democratic process with its pesky checks and balances negotiated through a practice of conflicting ideology as though we must all conform to the wishes of the plantation master.

I insisted on clarification from the mayor but he refused to delve into the subject further and repeated his script, “… as a team… balance… it’s not personal…”

The Carvalho Regime: Together We Can’t.

Worse still, by June’s ethics meeting Castillo went beyond the fold by telling us that although the BOE is the client we “must” follow his advice. Thankfully, member Paul Weil, an extremely skillful attorney, did not allow this abuse, but somehow to my dismay Paul did manage to let Nishimitsu off the hook — in his words— a regrettable error. That portion of the June meeting which Hubbard, Lenthall nor I could participate, a confounding deal was struck by the four-member BOE quorum and Castillo: all three respondents to the May complaints would be found not guilty of violating 20.02 (D) based on a future county attorney opinion. That’s right. As soon as the board “received” an opinion from the CA, the charges would be dropped.

But thanks again to Paul Weil it was not as easy as the status-quo desired. Weil filleted the work product of Castillo & Co. plastering it with the now notorious “fatally flawed” label eventually hashing-out details with Castillo at Weil’s home— forging compromise. I respected Weil very much for this move. Not only did he make the extra effort for everyone, but he did it with the best of intentions at a time when was torn apart. Weil seemed optimistic. When Castillo agreed and worked to a deal then backed-out by the following ethics meeting leaving Weil to see Castillo’s true colors— the attorneys parted in canyon-sized proportions. Weil, not to be played like a sucker, exposed Castillo and Trask, by releasing his e-mail communications publicly, understandably, in the name of good governance and transparency (www.kauaiworld.com/sunshine).

During these months of unprecedented openness, confusion and in-fighting within the BOE, I began requesting digital audio minutes from the OBC for the ethics meeting open sessions. The summary minutes supplied by staff approved by the board and posted to the Internet paled in comparison to the actual dialog of these hotly contested meetings. The atmosphere at ethics became critically charged and I wanted the verbatim record preserved, especially since the law was being perverted in a very concerted effort between status-quo board members, the CA, and OBC. By this point in time I felt fully alienated by my government chums, Mr. Isobe no longer smiled in passing, Castillo made no eye contact with me at Council meetings and many of my ethics mates resented me for challenging them. BOE meetings became longer and more heated and Chair Leila Fuller who sat to my right grumbled ever more frequently under her breath and became unsympathetic and sometimes mean-spirited toward public testimony.

Even my requests for audio were met with increasingly deflated responses, and worse, “If you keep this up I don’t know if we can be friends any longer.” the secretary addressed me. A joke, yes, but the message was clear:

Bieber’s rocking the boat — it’s unwelcomed and he must pay.

One way of making me pay was to intimidate me by rallying an “investigation”. This investigation, predicated on an inquiry by Vice Chair Hubbard as to how his name and the names of Judith Lenthall and Lorna Nishimitsu got into the newspaper over ethics complaints never unfurled but remained a dark and misty cloud on the ever growing list of executive sessions. In a weird turn of events, a copy of the board’s executive session minutes concerning the investigation turned up in my subsequent BOE package so I read all about what our discombobulated board was up to — again, Isobe was at the forefront ready to assist the investigation with any and all resources available from the OBC, all too zealously the minutes read.

Crazier still was Hubbard’s and Lenthall’s lame attempt at espionage when during our recusal of the June meeting they attempted a ridiculous display of “good-cop/ bad-cop” to get me to answer questions concerning complaints and names getting into The Garden Island. Lenthall did an especially bad job hiding the fact that she was holding her Black Berry device too close to my mouth.

The pinnacle of insanity surrounded the October 2009 BOE meeting. It wasn’t enough that the board meetings were now regularly fraught with ridiculous numbers of executive sessions with never enough votes to get into and unclear as to who should participate and who should recuse themselves for conflicts-of-interest or that now the county disclosure statements were examined by the board in open session — a concept unheard of in the history of Kauai County. Or that nobody really understood how the BOE was going to circumvent responsibility of upholding the law concerning the three complaints filed by now five months earlier.

No, what happened next was a new journey down another rabbit hole replete in recognition.

October 2009, Deputy CA Mona Clark said in open session that “private interest: is defined as anything other than a government entity.” This definition was refused all year in not one, but two new county attorney opinions given the board in prior months of 2009, subsequently challenged by the BOE, particularly Weil, and released to the public. The definition of private interest that sprang forth out of the blue like a sunbeam that morning had been denied long before the May complaints that kept the board in fog was now batted about in open session deliberation between board members as if a beach ball. When Clark defined private interest I could not believe my ears — literally, “private interest— a non-government entity”. But my joy would soon be countered by Weil. Ironically, this is the one definition where the county attorney got it correct and Weil got it wrong. This definition would set the table not only for future interpretations of 20.02 (D) but what the board currently faces in complaints still pending (for example, Vice- Chair Hubbard as respondent for representing a “private interest” 501(c) 3 before Council). In a further perverse twist, eventually, Lenthall and Hubbard agreed!

Later, I requested the audio just like I had done each month prior wanting to hear those words again, “private interest — a non-government entity” in full audio but to my shock and horror my request had been denied from the OBC. They said the digital audio was not available due to a “flash drive error — no audio”. This meant the entire verbatim record was lost. A question crashed through me immediately: was this done intentionally because of Clark’s words?

Shock and horror turned to disgust and suspicion when the following County Council meeting had on its agenda a request from Isobe to destroy audio records. My God, what is going on?

In response to this news I wrote letters to the CA and Council to deny request to destroy any audio records from the BOE because they needed to be preserved in case of any litigation, especially regarding the board’s dealing with 20.02 (D). I found the coincidence between my denial of the October audio and this Council request uncanny. How could this be a mere coincidence? To me it wasn’t coincidence and felt I needed to confront yet again those whom I shared the public trust. Was this a cover-up? A friend asked me how I thought I could get any kind of support from the CA and Council after all the public scrutiny. Why not just talk to Isobe about the records yourself?

By this time I had lost trust in the OBC Administrator. Certainly the feeling was mutual. Since I came on board, no longer was Isobe able to coerce BOE members into protecting CA work product with a super-majority or unanimous vote, or keep disclosure statements secret, or protect political allies like Mattie Yoshioka with favorable advisory opinions vis-à-vis Jonathan Chun a year earlier. O’ the difference a year makes. For Isobe, maintaining a stranglehold on appointees — his kuleana beginning in 2006 under Baptiste was beginning to slip in serious ways.

The more I examined this dynamic, the clearer the idea became— Isobe’s loss is your gain. Or in the case of these records our loss was his gain, so I imagined. For better or worse, I was not going to let BOE records get destroyed without a fight, even if it meant another costly challenge to yet another pillar in the Carvalho regime.

When the agenda item finally came to the floor of Council, a strange thing happened. A letter from the administration suddenly appeared signed by Isobe and Mayor Carvalho wishing to withdraw the agenda item. I was relieved. The records would be saved. But I felt the Council deserved some explanation as to what was happening behind the scenes. After calling for recess, Chairman Asing asked for public testimony. I approached the microphone, introduced myself and disclosed my membership in the BOE.

At this point something terribly surprising happened and if I had anticipated it I would have handled it differently, but I didn’t. I had no clue that CA Castillo would cut off my testimony before it started. As soon as I introduced myself, Castillo responded with authority. He stated that I would be in violation of the charter and code if I continued testimony. Time froze. I watched in awe as Castillo grinded this testimony to a halt. I looked at the Council, back to Castillo and then back again — Council sat silently and obediently and as still as I did. Castillo, who has no authority in this situation, boldly challenged me and the Council — gambled, and won, initially anyway. It is the Chairman’s prerogative on how to handle public testimony, not the CA. If the Chairman has a question as to the opinion of law concerning testimony he would then ask the testifier to wait a moment while getting legal advice from the attorney. The CA would then offer advice to which the Chairman would respond in conducting the business of testimony. If a testifier chooses, even knowingly, to condemn himself or violate the law he has every right to do so. But the CA may not keep anyone from testimony. It is a violation of one’s First Amendment Right of free speech.

Had I anticipated this move by Castillo, I would have put him on the spot and asked what law was being violated by testifying before Council. But I didn’t. In my inexperience I backed away and I’ll never forget it and always regret not challenging him on the spot.

Fortunately for all of us, Michael Levine of The Garden Island did put Castillo on the spot and asked what law I would have violated. Castillo’s answer: 20.02 (D) “No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency.” And thankfully, for the public record, Levine printed it.

More importantly, it exposed Castillo as a bad attorney or a political fraud. And if you think there was no political gamesmanship being played there by Castillo considers this: why didn’t Castillo stop Charter Review Commission Chairman Sherman Sheraishi from testifying in favor of the Charter Review Commission appointees at the County Council meeting only weeks later in December 2009?

Because Bieber must pay.

None of the progress in ethics could have been successful without keen journalism and those already participating in our special brand of “democracy”— those willing to chance ridicule, or worse, to point out our government’s faults and needs for improvement. Attention to detail by Michael Levine, Nathan Eagle at The Garden Island and super-heavyweight political reporter Andy Parx at PNN as well as other media outlets have supplied the oft needed exposure the people require and the government deserves. And I would be remiss not to mention the public’s outcry for justice in testimony and the many letters to the editor during the year. Charter champion Horace Stoessel; Attorney and columnist Walter Lewis; Bruce “No-red-tape” Pleas; Government watchdogs like Glenn Mickens, Ken Taylor, Rob Abrew, Caren Diamond and many, more have as much to do with recent breakthroughs in government transparency as I do. Yet, current political movements for change are not nearly enough to take us into 2010 and beyond. This government desperately needs more public involvement.

And bravery is required more consistently from the county rank-in-file to the protester on the streets; from reporters and editors of news pages and blogs to a public willing to write letters and give testimony in commissions and Council meetings. Courageous effort is needed from those who strive to sacrifice for honor and dignity and oath to serve the best interest of the most Kauaians. Remember, my brother and sister citizens, like the mayor says, “It’s not personal.” But I say it’s okay to make it so.

Who of you is willing to pay the price for a better government?

Rolf Bieber, Kapa‘a