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. |
