Musings: Dreck from the Depos, Part II

As is befitting for May Day, the many birds that inhabit the backyard bamboo — shamas, doves, finches, Hwamei and some whose names I do not know — greeted me with a sweet and flowery dawn chorus that drowned out the screams of the doomed, tethered roosters.

Say, did you hear the one about six lawyers who sat for five hours in a room with a court reporter, one questioning county planning inspector Sheilah Miyake — a political appointee of former Mayor Maryanne Kusaka — as the others raised objections? Here's the punch line: Must've cost taxpayers a good ten grand to learn Sheilah has a seriously impaired memory.

And so we continue with our review of the depositions taken in the now-settled case of Tim Bynum vs Shaylene Iseri-Carvalho, Sheilah Miyake and the County of Kauai. The questions are being asked by Bynum's attorney, Dan Hempey, with Sheilah responding as various county-paid attorneys representing all the many parties object.

Q  Please describe your educational background.

A  Two years of college.

Q  And what did you study?

A  English.

Q  And how long have you been a planning inspector for the County of Kaua'i?

A  Eight years.

Q  So what did you do at the planning department before you became supervisor in the planning department?

A  Deputy director.

Q  What, if any, experience did you have in the field of planning at the time you became deputy director in '99?

A  Planning commissioner.

Q      How did you first learn that there was a potential issue with the Bynum home that was going to involve the planning department?

THE WITNESS: A telephone complaint.

Q  Did you recognize the voice of the person on the phone?

 

A  No.

Q  Do you know if the person on the phone that told you about the Bynum house for the first time was [Councilman] Mel Rapozo?

A  No.

Q  Would you recognize his voice if it was Mel Rapozo who made that call to you?

THE WITNESS: I wouldn't know. I'll be honest, I don't know.

Q  Did the person on the phone give you a name?

A  Yes.

Q  They gave you the name of [an Anahola kid who had just been arrested on a minor charge, but claims he never made the call] did they not?

A  Yes.

Q   And what exactly did this person on the phone tell you?

A      Illegal dwelling.

Q  You recall that they said there was an illegal dwelling?

A  Yes. Illegal rental. Illegal -- I can't recall the exact words.

Q  Have you told anyone that the police came to the Bynum home to investigate a domestic dispute [involving his tenant and her boyfriend]?

A   I don't recall.

Q   Did you take part in an inspection of the Bynum property on or about April 14th, 2010?

A   Yes.

 

Q   Who decided to conduct that inspection?

MR. FUJI: It's vague and ambiguous.

THE WITNESS: Don't recall.

Q  You're aware that a criminal case was instituted against Mr. Bynum; correct?

A      Yes, yes.

Q  And in the course of the criminal complaint, Special Deputy Attorney General Richard Minatoya interviewed you; is that correct?

A  Yes.

Q  Did you answer his questions truthfully?

THE WITNESS: As best as I recall.

Q  And also, during the course of the Bynum case, you were interviewed by [former first deputy prosecutor] Jake Delaplane; is that correct?

A  Yes.

Q  And you were unaware that Jake Delaplane was tape recording that conversation; is that correct?

A  Yes.

Q  How did it make you feel to learn that Jake had recorded your conversation?

A  Exactly how I'm feeling now.

Q  How are you feeling now?

A  I'm very sad.

Q  What about this makes you sad?

MR. FUJI: Let's take a break, Counsel.

THE WITNESS: Just sad.

MR. FUJI: Sheilah.

THE WITNESS: I'm sad.

MR. FUJI: Let's take a break.

THE WITNESS: Why?

(After a five-minute beak, the questioning resumes.)

Q  And my question to you now is: Why do you feel sad about this?

A      I just feel sad that he did not inform me that I was being tape recorded. He's an attorney. He's a prosecuting attorney.

Q  Did you file any sorts of complaints against him for doing that?

A  No.

Q  Do you think you did anything wrong in your handling of the Bynum case?

MR. FUJI: Object to the form. Lacks foundation. It's vague and ambiguous. Overly broad.

THE WITNESS: No.

Q  No?

A  No.

Q      Did you discuss your decision to go onto the Bynum property before you went onto the Bynum property in April 2010 with [former planning director] Ian Costa?

A  Yes.

Q  And what did you discuss with Ian before going to the Bynum property in April 2010?

A  "How do we proceed with this?"

Q  What did he tell you?

A  "Treat it as any other complaint. Proceed as any other complaint."

Q  So your testimony is you believe Mr. Costa implicitly approved your entry onto the property by telling you to go forward and investigate; is that right?

A  Yes.

Q      Is it normal when you get a report -- a complaint like you got in the Bynum case, to go onto the property and have pictures taken through the doors of the inside of the home?

THE WITNESS: Depends on the circumstances.

Q. What are some circumstances -- what are some of the variables that cause you to take pictures of the insides of people's homes versus declining to do so?

THE WITNESS: If there's an open permit or a use agreement, we enter the property. And if we can't and if there's a transparent door and it's possible to see in, photographs are taken. And if the door is solid and we can't see in, no pictures are taken.

Q  So when you go to inspect a citizen's house based on a complaint from someone who wishes to remain anonymous, is it fair to say that the only thing that keeps you guys from taking pictures of the inside of their home is how well they protect or cover the doors?

THE WITNESS: Possibly.

Q  Who, if anyone, taught you that practice?

MR. FUJI: Same objections.

MR. NAKAMURA: Also vague and ambiguous.

THE WITNESS: All the inspectors that I have named that I have worked with.

Q  Have you ever taken pictures of the inside of citizen's homes without their permission or without a warrant?

MR. FUJI: Let me object to the form of the question. Vague and ambiguous.

THE WITNESS: Not that I recall.

Q  Have you ever seen people that work at the planning department taking pictures of the insides of people's homes without their permission and without warrants other than in the Bynum case?

THE WITNESS: I don't recall.

Q  Sitting here today, you cannot recall a single other case where someone at the planning department took pictures of the inside of someone's house, can you?

MR. FUJI: That's a different question.

MR. HEMPEY: That's a new question.

THE WITNESS: Just 'cause I don't recall -- oh.

MR. FUJI: Sorry, I didn't hear that. Did you respond?

THE WITNESS: Yes, I said, "I don't recall."

Q  When you looked into the home, what did you see, if anything, that caused you to believe there was a zoning violation?

A  It looked like a separate dwelling.

Q  Okay. And what specifically did you see that led you to that conclusion?

A  A living room and a kitchen area.

Q  What was in the kitchen area that led you to conclude it was a kitchen area? [Henriquez had previously testified they saw a rice cooker.]

A  I observed a refrigerator, a toaster oven-like thing, broiler/toaster, whatever you call that. Boxes of food, possibly like cereal. That's what I recall.

Q  You recall seeing a toaster oven?

A  Yeah, a small compact like -- it looked like that.

Q  Do you recall discussing -- do you recall that when you discussed this with Mr. Minatoya saying that there wasn't a toaster oven?

A  I don't recall that.

Q  Do you recall saying to Mr. Minatoya something to the effect of, Don't ask me if there was a toaster oven?

A  I don't recall that.

Q  Are there any pictures of the toaster oven that you remember seeing?

A  I don't know. I don't know. I don't recall.

Q  Hempey shows Sheilah an email sent from her county email account.  Did you send an e-mail to [former county clerk] Peter Nakamura with the subject line, "For your eyes only"?

A  Not that I recall, ever.

Q  Did you give anyone permission to send an e-mail from your computer to Peter Nakamura on April 15th, 2010?

A  Not that I recall.

Q  Do you have any idea why the April 15th, 2012 e-mail titled "For your eyes only" was sent to Peter Nakamura?

THE WITNESS: I have no idea.

Q  And is it fair to say you cannot say if it was you and you cannot say if it wasn't you?

A I believe it wasn't me.

Q  Did you ever discuss the Bynum matter with Peter Nakamura?

A Never.

Q  Did you ever discuss the Bynum matter in the year 2010 with [former Council Chair] Kaipo Asing?

THE WITNESS: I don't recall.

Q  Would it have been improper for a planning supervisor to send, based on your understanding of the rules and practices of the planning department, would it be improper for someone to send a notice of -- a copy of a notice of zoning violation to the county clerk before it was served on the person who's getting the violation?

THE WITNESS: I wouldn't know.

Q  So is it accurate to say Ian Costa told you that you have to answer to the council chair?

A  Correct.

Q      Isn't it true that you discussed the Bynum zoning matter with Kaipo Asing while he was council chair?

A  Yes.

Q  What did you guys discuss?

A  Compliance and the due process.

Q  And what, if anything, did he ask you about the Bynum case?

A  "Is compliance being met?"

Q      And do you know whether it is proper for a county council chair to be asking a planning inspector about compliance issues in a particular zoning case, do you know?

MR. FUJI: Objection. Vague and ambiguous. Requires speculation.

MR. OLSON: Join.

MR. NAKAMURA: Join.

THE WITNESS: I wouldn't know.

Q  And did you, in fact, receive the cc that appears in the heading of this e-mail from Ian Costa to Shaylene?

A  Yes. Okay.

Q  Let's move up to the top of the e-mail now, Ian's reply to Shaylene. And the first thing he says, "The CZO really doesn't prohibit renting portions of structures." Would you agree with that statement?

A I agree.

Q So even if a house is on ag. land, can a person rent out a room?

Various objections are voiced.

Q  Go ahead.

A  Yes.

Q  Based on your training and experience as a planning supervisor and before, is it also true that the CZO does not dictate where locks are permitted and not permitted?

More objections are voiced.

Q  Go ahead.

A  Yes.

Q  Did this Bynum matter get off track as far as you're concerned at some point?

MR. NAKAMURA: Objection. Vague and ambiguous.

MR. FUJI:  Vague and ambiguous.

MR. OLSON: Join.

THE WITNESS: Yes.

Q  How did the Bynum matter not follow the normal course?

A  He had special treatment.

Q  From whom?

A  From our department.

Q  From who in your department?

A  I guess all of us. The whole department. From whom? The case was turned over to our deputy director, Imai Aiu.

Q  Do you think Imai Aiu gave Mr. Bynum special treatment?

A  I don't know. I can't answer.

Q What is your reason to believe that Mr. Bynum requested special treatment?

A  He never called Patrick.

Q  Okay. And so what would normally happen if a citizen who gets a zoning compliance notice who doesn't respond in the 15-day window? What's supposed to happen then?

A  Send them a notice of violation.

Q  So that second zoning compliance notice that went out, was it written by Director Costa?

A      Yes.

Q   Did Mr. Costa ever tell you that he first heard about the zoning matter at the Bynum property from Kaipo Asing?

A  No.

Q  Would it surprise you if you learned that Ian Costa told Special Deputy Attorney General Richard Minatoya that he first heard about all this from Kaipo Asing?

A  Very much so.

Q  Is it accurate, then, that Ian Costa told you that if Kaipo asks about the Bynum investigation, that you provide Kaipo Asing with the information he's requesting?

A Yes.

Q Did Kaipo Asing ever ask you about the Bynum case?

A Yes.

Q What did you tell him?

A To please ask Ian Costa.

Q Did you ever provide him any copies of the zoning compliance notices, either one of them?

A Yes.

Q Did he tell you why he wanted a copy?

A No.

Q Did you lose any power in your job by virtue of the fact that Kaipo Asing no longer was council chair?

A From then to now, I lost no power.

Q You've lost no power?

A I've stayed in the same job, same position.

Q You thought you might lose power but you ultimately didn't; is that accurate?

A  Yes.

Hempey went on to ask Sheilah about various comments she made on the secret Delaplane recording, including “It's all political, but I will never say on stand that it is political. It will be my demise," and that Costa pursued the zoning violation, against advice from deputy county attorneys, “because Kaipo wanted it. Kaipo was asking. And I gotta answer to the Council Chair.”

But she simply couldn't recall making any of those recorded statements, or what she might have meant by them.

Q  If you just kind of read down through Jake says, "He's starting to shake over here." He talks about Patrick shaking as you guys talk about Shaylene. Do you remember that interchange?

A  No, I don't.

Q  Do you remember Patrick shaking?

A  I don't even recall Patrick sitting next to me.