Musings: Pay the Piper

The promise of free legal services to defend Kauai County's controversial pesticide/GMO regulatory law has been relegated to the realm of feel-good fantasy, alongside Santa Claus, the Easter Bunny and the Tooth Fairy.

Like most myths, it was perpetuated for a purpose: lulling a poorly-informed populace into believing Councilman Gary Hooser's ego-driven foray into poor policy-making would have no cost and a happy ending.

Meanwhile, in the real world, the county attorney is asking the County Council today to approve $75,000 to hire special counsel to launch a defense against the chem companies' lawsuit. The county is required to respond to the 70-page complaint by Friday.

Another bill asks the Council to move $500,000 into the special counsel account “for several other ongoing cases, and in anticipation of future needs,” according to county spokeswoman Beth Tokioka.

Returning to the land of make-believe, attorneys like Teri Tico, Peter Schey,  Earthjustice's Paul Achitoff and Center for Food Safety's Andrew Kimbrell lobbied hard for Bill 2491. It's a great law, they said, and we'll be right there to defend it. Here are the letters from Schey, Kimbrell and Achitoff outlining their original unconditional offers. Schey even specifies "without charge to any party."

The County Administration played along, duly giving pro bono attorneys a chance to step up to the plate, even as Maui attorney Lance Collins, supposedly driven by his deep concern for lawyerly ethics and the sanctity of our County Charter, filed a protest against the freebie procurement process — the day before pro bono proposals were due.

Ultimately, only Tico and Schey, director of the California based-Center for Human Rights and Constitutional Law, submitted a joint pro bono proposal, with Tico slamming Mayor Bernard Carvalho Jr. in the process.

Yesterday, the Administration slammed her right back. In rejecting the Tico-Schey offer, the county found the pro-boners were non-responsive to the bid requirements and “did not have the requisite qualifications and experience for the job.”

“That's nonsense,” sputtered Tico, who apparently thinks her provincial personal injury practice on par with the chem companies' heavy hitters — attorneys like former state Attorney General Margery Bronster, land use shark Paul Alston, Nancy Bryson, an expert in biotech, agricultural and federal regulatory law, and John A. Bryson, who litigated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) on behalf of the Justice Department.

Actually, what's nonsense is Tico's claim to The Garden Island that the “county wanted her to disclose every law firm she has every worked with, as well as every case she has been involved in” over 38 years of practice. 

In truth, the required disclosure was quite a bit narrower (emphasis in the original):

A list of projects of similar scope for public agencies or private industry, including corrective actions and other responses to notices of deficiencies undertaken and completed within the last five (5) years (including dates); owners of the projects and the scope of work performed; the names of up to five (5) clients who may be contacted, including at least two (2) for whom services were rendered during the preceding year.

But Tico isn't the only truth-challenged attorney in this fairy tale. In the same article, Collins told TGI:

The county’s secret request for lifting the stay on procurement last week while not informing my office seems to suggest bad faith on the county attorney’s part.

In fact, it was no secret, since the special counsel procurement request was placed on the very public County Council agenda, which was published last week. What's more, notice was emailed to Collins yesterday morning, at least six hours before TGI's reporter would have been calling for comments.

Meanwhile, Collins is pressing on with his protest, though the pro bono procurement process is effectively moot. A pre-conference hearing on his appeal is set for Friday. He now plans to file a motion to freeze the procurement process pending the resolution of his protest, which could extend beyond that day.

No worries, Collins cavalierly claims. The federal judge will let the chem corps complaint slide until my manini, and now irrelevant, issue is resolved.

The County Attorney's office sees it differently. In a Feb. 6 memo to the finance director seeking to move forward to review the pro bono offer and, if it's not satisfactory, secure special counsel, first deputy County Attorney Jennifer Winn wrote:

The risk of harm to the County should special counsel not be in place by the scheduled answer date [Friday] could be substantial and irreparable. 

So whose interests would be served by the delay that Collins is seeking?

Though most of the coverage has focused on Collins' claim that it's unethical to require pro bono attorneys to pay court fees and other costs, he's also challenging the county's long-standing interpretation of the charter.

Collins claims our charter “leaves hiring of special counsel and the scope and terms solely to the County Council,” not the administration. In other words, he thinks the same Council that overturned the mayor's veto of Bill 2491 should now be deciding who defends it, and how much they're paid.

Yet we're supposed to make-believe he's acting solely on his own, as an attorney interested only in process, not politics, personalities or publicity.

Don't get me wrong. I love fairy tales, myths and make-believe. 

But Kauai residents need to shake off the spell that's been cast over them, abandon the fantasy that Hooser is a dragon slayer and face reality: we're getting sued by some of the most powerful corporations on earth over a bill that is more frog than prince. And there ain't no white knight in this or any other kingdom that's gonna ride in and save us. So open up the treasure chest and prepare to pay the piper. Because "poof" — the pro-boners have vanished in thin air.