Sunday, January 12, 2014

Biotech Firms Challenge Chock's Appointment to Kauai County Council

As part of their complaint filed against Kauai County last Friday, the biotech seed companies are seeking to void the County Council's selection of Mason Chock to fill a vacancy on that panel.

If they are successful in voiding Chock's appointment, it would also invalidate the Council's vote to override Mayor Bernard Carvalho's veto of Bill 2419. The Council, recognizing it did not have the votes for an override, recessed and appointed Chock to complete the term of Nadine Nakamura, who resigned from the Council to work as the mayor's top aide. Chock went on to support the override.

The appointment is contested in the last of the plaintiffs' 13 claims against the county. It describes how the Council received numerous applications for the position, but kept the names secret. The Council met in closed executive session to winnow the list down to just two: Chock and KipuKai Kualii, who finished eighth in the last election.

By identifying only Kualii and Chock, “the Council deprived the public of any opportunity to know the identity of everyone on the list of applicants and, thus, the identity of the people the councilmembers chose not to put on the 'short list' for public discussion,” the complaint states. “As a result, the public was deprived of any opportunity to know whether, and to what extent, political affiliation, political favoritism, personal bias, campaign contributions (or the lack thereof), education, employment or other factors may have influenced the selection process. The applicants had no privacy interest in maintaining anonymity, or if they did, their privacy interests were outweighed by the public interest in knowing the credential and experience of the applicants who the council passed over in the members' rush to choose a replacement councilmember who would support overriding the Mayor's veto of Bill 2491.”

The complaint contends the state "Sunshine Law" (HRS 92-4 & 5) does not authorize the Council to winnow the list of applicants in secret. Under HRS 92-11, the Council's action is voidable upon proof of a violation, in any action brought within 90 days of the challenged meeting.

This action was filed within that time period; the Council's appointment of the replacement member must be voided,” the complaint states. “All actions taken in reliance on the vote of the improperly selected replacement member — including but not limited to the override of Mayor Carvalho's veto of Bill 2491 — is likewise void.”

I went back into the Council minutes to look at how the panel chose a replacement for Derek Kawakami, who resigned in 2011 after being appointed to finish out the House term of Mina Morita, who had been named chair of the Public Utilities Commission.

In that case, the Council “circulated internally” a list of people interested in serving, according to the April 12, 2011 minutes. The list was never made public. Since the county charter does not specify a process for picking a new member, Council Chair Jay Furfaro proposed one that his colleagues approved:

First of all, nominations from the council will be taken one name at a time. All nominations must be seconded. After a nomination and a second, I will take public testimony for those who wish to speak on the person that was nominated at that time. After public testimony is taken, the council will be called back to order and we, in fact, will discuss that nomination. After the council discussion, a roll call vote will be taken on that nomination. If a nomination receives four (4) votes, it will be considered that a selection and consideration had been made. If four (4) votes are not received, the council will then move to a second nomination from its members and then we would repeat that sequence.

Kualii, who had finished eighth in the previous election, was the first to be nominated and was unanimously approved.

But when it came to filling Nakamura's seat, the Council took a different approach, which Furfaro said he had cleared through the Office of Information Practices. “Again, by OIP, we do not disclose who the applicants are of the eighteen (18) at this point,” Furfaro told the Council before going into executive session on Nov. 15, 2013. “We are only required to disclose those that are nominated.”

Prior to that meeting, Councilman Gary Hooser had been polling applicants for their stand on the bill he sponsored.

The panel met in executive session and winnowed down the list of applicants to Kualii and Chock. Both men were nominated and voted on in open session, with Chock winning in a 4-2 vote. Furfaro, in casting the tie-breaking vote for Chock, promised to help Kualii in his next election.

Kualii's 2011 appointment was also challenged as a violation of the “Sunshine Law,” though on different grounds. However, according to a Dec. 30, 2011 OIP memo:

Because OIP was not presented with any specific facts indicating that councilmembers discussed the successor selection before the Council’s meeting, and because OIP believed there is a plausible alternative explanation for the Council’s apparent assumption that Mr. Kualii was likely to be selected, OIP could not conclude that the Council’s selection of Mr. Kualii was the result of improper discussions, including possible serial one-on-one communications.

Though one observer felt the 13th claim was the weakest in the biotech companies' complaint, a top Hawaii attorney disagreed.

Federal judges don't like things that on the surface appear to be rubes making up their own rules to subvert legal processes,” the attorney said. “It strikes them as a little too 'Hazzard County.' Or in this case, Dukes of Hoozer.”

Perhaps the Charter Commission should get to work on an amendment that specifies a process for filling Council vacancies instead of letting the Council continue to fly by the seat of its pants.


Anonymous said...

The Charter Commission dropped the ball again. All of this would not have happened if the Charter stated " A vacated council seat goes to the next highest vote getter".

Do something right for crying out loud!

Anonymous said...

WOW. Thanks Joan. I like how the Chair always puts blame on someone how he says "according to OIP they said"...why doesn't he use the County Attorney's office...isn't the CA his legal advisor?

I'm sure when this is addressed at the Federal level, they will all leave the blame on someone else..."well so and so said this" only when it aligns with what they want done. why did they do something different from what they did when replacing Derek?

And can you believe Gary? Now he's mudslinging that the bio companies have something to hide...hey A-HOLE, it's called constitutional rights. they have the right to sue. and so does your bff bynum which he already did. get over it. and try actually working on a bill that sticks.

Anonymous said...

I wonder why The Garden Isle didn't write about this?

Anonymous said...

Thank you Joan- Methinks you keep the public informed.
Something is rotten in County of Kauai-
The Council
“We are arrant knaves all, believe none of us.”
“Tis the times' plague, when madmen lead the blind.”
“Though this be madness, yet there is method in it."
“Madness in great ones must not unwatched go.”
“therein lies the rub”
“Nothing is neither good nor bad but thinking make it so.”
― William Shakespeare, Hamlet

Joel said...

Anonymous 3:31~ Great topic for the Charter Commission to look at, I will request the chair puts this on our agenda. We put things on the ballot for the public to vote on. We do not change the charter. The power is with the people on whether it is a change to the charter. We (7 people) have to vote to put a proposal on the ballot. Come to a meeting, speak up, this is another way for public participation in county government.

Joel Guy said...

cleared for take-off = Joel Guy

Anonymous said...

Anonymous said...

Saw this headline about NJ Gov. Christie, and it reminded me of how politics is done on Kauai….change the name in the blank to your favorite Kauai politician

"[name] is the caricature of a Third World despot. He has a vicious temper, a propensity to bully and belittle those weaker than himself, an insatiable thirst for revenge against real or perceived enemies, and little respect for the law and for the truth."

Anonymous said...

Oh- now you just make shit up, eh Joan?
"Prior to that meeting, Councilman Gary Hooser had been polling applicants for their stand on the bill he sponsored."
Piss poor journalism has become your hallmark of late Joan.

Anonymous said...


He did. Ask him yourself.

Anonymous said...

Chock was asked his position on Herbides/GMOs. But his position was known before he was even considered. If you think this threshold bill would be left up to chance, you probably believe honesty and ethics are an ingredient of Hooser's psyche.
Manipulation and power is the mantra of many council members. Namaste.

Anonymous said...

Looks like the pro-bono attorneys going to have a long unpaid year.

Kolea said...

There is a silence in your telling of the tale. Isn't it true that KipuKai was also supportive of a veto override? If so, that undermines the insinuation Mason Chock was picked because he supported 2491.

Joan Conrow said...

If you are directing that comment at me, Kolea, I am making no such insinuation. Though I think it's quite clear that no one opposed to the override would gave been selected.

Anonymous said...

Now that the County is looking at the "pro bono" defense, Gary H has hit a political mother load. National headlines and moocho publicity as these clever attorneys drum roll the case of poor little paradise being sued by the big bad BioTechs. Gary will be front and center, a true darling, but the first thing any attorney will tell anyone associated with a lawsuit is "please everyone keep your big fat yaps shut" A real conundrum for this political opportunist to hit the big fame jackpot and not be able to luxuriate in the glory. He will have to take interviews this week before he is muzzled.

Anonymous said...

KipuKai would have voted in silence, according to the man himself, prior to the council appointment of Mason. So his vote would've gone with the majority, and the veto would still be overridden.

Anonymous said...

Very true, 4:57. But I think the pro hac vice attorneys for Syngenta from Holland and Hart- John and Nancy Bryson, will make mincemeat of Hooser and Bynum when they get them on the stand. Take a look at their bio's: .
The mainland bookies may have some fun handicapping this little horsetrot. The HooBy Twins can stack pro bono bozos 'till the cows come home in Makaweli and not improve the odds of turning this sow's ear of a law into a silk purse. Like the attorney suggested, federal court ain’t run by Sheriff Rosco P Coltrane nohow. But a good law was obviously never the true objective anyway.

Anonymous said...

It looks like Achitoff and Kimbrell are seriously outmatched and that's just 2 of the team.

Anonymous said...

Yeah, go Syngenta, Pioneer and Dow! Spray 'em, grow 'em, make 'em rich! And don't worry, it's safe. All barely detectable acceptable and not quite carcinogenic or disruptive to your nervous or digestive function levels except on one or two occasions for the people who live or go to school near these fields. And just because some rivers and streams run into the ocean right next to these fields is not a big deal if you think about it. I mean, how often does the westside get torrential rain?

Anonymous said...

With the anti 2491 crowd doing the "Nya Nya nay we got better lawyers than you" victory dance already, I really hope David can stun Goliath a bit - long enough for us all to step back and effectively and accurately discern what can properly be done to balance the profit making rights of corporate America with the rights of people who don't want to send their child to public school next to a chemical spray zone.

What shocks me the most is the unwillingness for dialogue on the part of the Seed Co.'s. Has anyone heard any real offer of compromise from them except "voluntary disclosures"? The seed cos are using scorched earth tactics, and now their supporters are gloating that they can afford hot shot lawyers. It's very ugly.

Anonymous said...

It shocks you that they aren't willing to negotiate when the county's back is against the wall trying to defend a shitty law? The time for negotiations was before the bill was introduced.

Anonymous said...

If I remember correctly the seed companies never at any time were willing to come to the table to talk. I honestly believe they thought it would never pass (2491) so why bother.

Anonymous said...

You never give me your money
You only give me your funny paper

Anonymous said...

If I recall correctly, Hooser kicked this off with a legalistic letter to the five companies demanding information and was shocked - shocked! - to get a reply written by their lawyers. It went downhill from there. The whole "process" was adversarial from the beginning. There was never a table at which to sit because the goal was to get the companies to sue. It is not about Kauai, the 'aina, "GMO"s or pesticides. It is about politics, egos, and money.

Anonymous said...

Why do you think Hooser changed his stance and voted for Chock??? It's because he wasn't 100% percent sure Kipukai was gonna vote to override the bill. I know because I heard it from the horses mouth...

Anonymous said...

Wouldn't that be something if the seed companies won? That would just cause more drama. Poor Mason, that must suck not knowing all what he went through was all for nothing.

Anonymous said...

Please, what did Mason go thru?