A moral victory for someone who felt politically persecuted, or a mishandled case cut short before the facts could see the light of trial? When County Council Member Timothy Bynum’s case was dropped last Wednesday, it was clear that it
A moral victory for someone who felt politically persecuted, or a mishandled case cut short before the facts could see the light of trial?
When County Council Member Timothy Bynum’s case was dropped last Wednesday, it was clear that it took a special prosecutor from the State Attorney General less than a month to find that the Kaua‘i County Prosecuting Attorney did not have a case to bring to court.
Bynum said he was being maligned by a process designed to drag his name through the mud during an election year. He said the dismissal shows that he was targeted for prosecution, while the prosecutor disagrees.
The cantankerous relationship between Bynum and Iseri-Carvalho is demonstrated at County Council meetings and became blog fodder. The two served on the council together prior to her being elected prosecutor.
Bynum said his attorney Dan Hempey is now working with former Attorney General Margery Bronster to investigate the events leading up to the OPA filing four misdemeanor zoning charges against him.
The OPA said it was not targeting Bynum, and that the allegations were carefully crafted defense attorney tactics. Bynum was one of many agricultural land owners who got by during tough times by creating a rental unit, according to the OPA.
The laws regarding Department of Planning inspections had not been properly enforced for some time. The OPA said it is going after transit rental violations after the code was updated by the County Council and some of it drafted by Bynum himself.
In court, it was First Deputy Prosecuting Attorney Jake Delaplane for the OPA. He faced Hempey, who twice called in county employees who never testified due to continuances.
Then Hempey brought in a former Kaua‘i County deputy prosecuting attorney who now works on Maui. He testified that Delaplane had asked him to record an interview with the resident/family friend at Bynum’s residence.
The testimony alleged that the deputy had refused Delaplane’s request to ask questions related to the code violations while actually interviewing her about an assault incident not related to Bynum’s.
Delaplane said he disputed the testimony from the former colleague and at that point knew he would likely have to testify against it. He attempted to recuse himself for that hearing only but wanted to continue as lead prosecutor.
Judge Kathleen N.A. Watanabe of the 5th Circuit did not allow the motion and summarily granted defense attorney Dan Hempey’s motion to recuse the OPA all together.
“… Your office should no longer be involved in any manner whatsoever with State v. Bynum,” said Watanabe in court in April. “And as such this court is ordering that your entire office, and I don’t mean just Ms. Iseri-Carvalho or you, Mr. Delaplane, but your entire office is disqualified from further prosecuting this case and the matter will be turned over to the attorney general’s office.”
Special Deputy Attorney General Richard Minatoya and a special investigator interviewed county and civilian witnesses. One civilian witness refused to testify, he said.
Then Minatoya said he discussed county code ordinances with colleagues and at that point decided the case wouldn’t survive a defense motion to suppress evidence. He said testimony did not support the charge that Bynum violated the Kaua‘i County Code as it pertains to second kitchens, or that he used the addition in violation of the dwelling ordinance.
The compliance inspections, that Bynum said were carried out without his permission, also were in violation of regulations, according to Minatoya.
Now that the case is dismissed with prejudice, Delaplane said the unfortunate recusal of the OPA did not allow its case see the light of day in trial.
The county code clearly states that residents cannot have a multi-family dwelling on agriculturally zoned property without a permit, Delaplane said. Bynum was earning income from a rental on agricultural land and not using his home for agricultural purposes, Delaplane said.
“Mr. Bynum did not have such a permit,” he said. “Yet, Mr. Bynum rented out a unit of his home, received income from that rental unit, and clearly used the home as a multi-family dwelling.”
Bynum’s statements say the addition to his home was a room built for his father who visited part of the year. It was then occupied by a family friend, and any locks or appliances were for simple privacy and convenience, he said.
The unit was rented but Bynum emphasized that it was for family members, Delaplane said. It appears as rental income on his 2008 County Income Disclosure, which Delaplane said was evidence of improper use.
The room had a double sink, full sized refrigerator, countertops, drawers, cabinets, dishes and utensils in an area that appeared to be a kitchen, he added. This was in violation of the county code as a rent-producing, multi-family dwelling on agricultural property.
Delaplane said the County Planning Department gave Bynum eight chances over one year to comply with requests for an interior inspection.
“This was extraordinary treatment not afforded to others with similar violations, and when he consented the inspectors found the violations existed,” he added.
“Illegal use of agricultural property is rampant on Kaua‘i,” Delaplane said. “Many people are using their agriculturally-zoned properties for commercial purposes, like rentals, and reaping from the benefits associated with the agricultural zoning designation while hard-working farmers struggle to earn a living abiding by the law. Everyone should have to play by the same rules, and those that violate the county code and benefit from it should be held accountable, even if you’re a councilmember.”
