Musings: Points of View, Part I

A smear of orangey-gold clung to the eastern horizon, and the cloud curtain was just lifting from the mountains when the dogs and I went walking this morning. Apricot-colored puff balls began to float overhead, joined, as we neared the river, by two ducks that flew silently, their dark shapes outlined against the pale yellow sky.

I've been hearing from people who don't leave comments, but instead call or email or chat with me in person, sharing their point of view on some of the happenings covered by this blog. Most recently, it's been the governor's meeting and the rash of suits and settlements involving Prosecutor Shaylene Iseri-Carvalho.

Is it possible, I've been asked, that County Attorney Al Castillo and Shay's enemies in the Administration really are cooking this stuff up to "get her," that folks are piling on when they see other people getting money?

I understand the incredulity. It is tough to imagine that one person could generate four EEOC complaints and two lawsuits, with so much occurring this close to the election. But it's important to remember that some of these actions have been in the works for a while.

There may well have been some politics involved in the timing of the EEOC settlements involving Erin Wilson and Shannon Weigel, though that doesn't undermine the validity of their complaints. Shannon told me her complaint, filed two years ago, languished for a while until she recently heard the EEOC had issued a finding, prompting her to wonder if someone had recently come forth with information. And some time did lapse between the negotiated resolution of Erin's complaint and its final settlement, as in check in hand, allowing her to publicly speak.

It's hard to know whether any of that was intentional, or due to the typically glacial (as in pre-global warming) movement of government.

However, I am convinced, after communicating with both women, that they filed their complaints because they felt genuinely aggrieved. And they insisted on non-confidentiality clauses not as a political stunt, but because they sincerely wanted to ensure that others were not similarly harmed. It's pretty clear that Erin, a victim-witness counselor fired for lack of work even as Shay has claimed an unrelenting rise in crime, was mistreated. It's also a stretch to claim conspiracy when the EEOC, a federal agency not likely in the pocket of either Al or the mayor, found cause, after conducting its own investigation, to believe that Shannon was the victim of racial harassment.

Was Al trying to burn Shay by settling these cases, rather than duking it out in court? Is the county "an easy touch?" It's possible. But it's equally possible he was trying to chose an option that would cost the county the least amount of money. Trials can be expensive, especially if you lose. In any case, a plaintiff armed with an EEOC finding has a pretty strong claim. And we have seen the county go to great lengths when it believes it has a strong case. Witness the protracted proceedings against Mike Sheehan's boatyard.

My understanding of Rebecca Vogt's suit is she wanted to deal with the issue ASAP. Was she inspired by the settlements given to Shannon and Erin? I don't know. But that was their intention — to give other county workers the courage to speak up against discriminatory behavior, especially in the prosecutor's office, which is charged with upholding the law and securing justice for victims.

Aren't these complaints kind of manini? several people have asked. Perhaps. Unless it's happening to you — and unless the perp is the county prosecutor, who more than anyone is expected to know and follow the law. Andy Parx, in an entertaining and detailed political analysis of Councilman Tim Bynum's lawsuit, paints a vivid description of why the prosecutor's actions are important:

The letter read like the rantings of a lunatic. The only problem is that the lunatic in this case had- and still has, until at least December 1- the discretionary power to imprison people.

Which brings us to Tim, and his very detailed legal complaint.

“A Councilman suing the county. It's unheard of,” one longtime political observer noted.

This is true. But then, I haven't heard of a prosecutor filing criminal charges against a Councilman, either, especially after two deputy county attorneys advised that there was no violation. And it's definitely a new twist — if the allegations are true — if the charges were filed because former Council Chair Kaipo Asing wanted to "get Tim."

“Local people don't like this suing stuff,” one man told me. “They don't like the idea that someone's trying to get money out of the county, especially when he's representing the county.”

Of course, Tim's suit isn't the only one. We've also got the police commission suing the mayor, and from what I hear, EEOC complaints may also be in the works against the mayor and KPD. We'll never hear about these, though, unless the victims decide to speak up, because the information is otherwise confidential.

Shay's troubles apparently aren't over yet, either. The County Attorney's office is back on the Council agenda this Wednesday, asking for another $10,000 for “special counsel's continued representation of the Office of Prosecuting Attorney for POHAKU and related matters.”

"Did Tim file because Becky filed?" someone asked, noting that the actions happened on subsequent days.  To my knowledge, the timing was not coordinated.

"How can Tim continue to serve on the Council when he's suing the county?” another person asked. “Isn't that a conflict of interest?”

That's an interesting point, and I don't know the answer. I know some people were advising Tim to hold off on filing until after the election, for fear that it would work against him with the voters. Others thought it was important to get the word out about Shay's shenanigans, even if it meant harming his own re-election bid.

Ultimately, it was Tim who wanted to press ahead. This has been hanging over him for a long time now, and I think he just wanted to move toward some sort of closure.

“Maybe Tim and Shay will end up destroying each other,” one person observed. “Or who knows, maybe they'll end up together again on the Council.”

Yes, in Kauai County government, it seems anything could happen.

But mostly what I hear from people is dismay and disgust. They tell me they're depressed, discouraged, disappointed. Though fascinated by the political intrigue, the twists and turns, they're turned off by the dirty dealings, the dirty tricks.

If there's agreement about anything, it's this: If county officials spent more time focusing on their jobs, and less time figuring out how to set up or get back at their enemies, they might just make some progress in resolving the critical issues that face this island. Not to mention saving the taxpayers a sizable chunk of change.

Musings: Common Complaint

It's the fall equinox, and it feels like it, with an inch of rain falling overnight, the day coolish, grayish, subdued. Not that I'm complaining, because it's been quite a week, what with Shay getting sued — twice — the Guv getting booed more than twice, statewide Occupy Monsanto protests and the first confirmation that Japanese tsunami debris has arrived in Hawaii, though I've been seeing an inordinate amount of styrofoam and plastic bottles with kanji lettering washing up for a couple of weeks.

I've been thinking a lot about the governor's meeting — you can listen here, thanks to KKCR — and what it really meant. Though Civil Beat portrayed the Kauai crowd as a bunch of ungrateful, rude hicks fixated on the Public Lands Development Corp. (Act 55), the discontent is a lot deeper and broader than that.

Yes, opposition to the PLDC is strong and growing — some are calling it the new Superferry — but fishermen and ocean users who are worried about plans to expand the humpback whale sanctuary had an equally strong presence, as did the anti-GMO contingent.

There's a common complaint in all of these concerns, and it's about centralized decision-making, centralized control of land, water, resources, food. Centralization works to disenfranchise local communities, make people feel like they aren't being heard. 

So it really didn't help when the guv kept deflecting criticism by telling people to take their complaints about GMOs and the PLDC to the Legislators, because they make the laws.

Yeah, technically, but we all know the guv not only helps set the Legislature's agenda — the PLDC is a key component of Abercrombie's “New Day in Hawaii” — but holds veto power over any bill.

And though DLNR Director William Aila patiently explained that the state is partnering with the feds in many of the controversial ocean initiatives, I'm not sure too many of us believe that relationship is equal – not with the feds holding the purse strings, not to mention the guns.

The Administration showed it was particularly out of touch when the issue of GMOs arose, as it did right off the bat, when Councilwoman JoAnn Yukimura asked the first question: how come no organic farmers in the Kekaha ag park? Why, they're welcome, of course, replied the Dept. of Ag's Scott Enright, who talked about how tough it was to make a profit with small farms. “But we can accommodate them if they come forward,” he said.

“Not in the GMO fields,” someone yelled from the crowd. “The air and water is all contaminated over there.” And off it went. The guv, trying to regain control, fumbled badly, telling folks the “philosophy of agriculture” is something they needed to take up with the Lege, because “we're trying to encourage agriculture any way we can.”

Scott inadvertently threw more fuel on the fire. “I realize there's a passion when it comes to GMOs, but the biotech industry is legal.”

“That's the problem,” someone yelled.

“We're talking about government, and you're part of it,” another person called out.

There you have it, the crux of the issue. It seems people are increasingly inclined to look at all the many factions of government as a single entity that isn't going to fix anything, because it's part of the problem, in bed with special interests, rather than serving the public good. 

"We don't trust you," was a common refrain. And that's hard to hear when you're in government because you truly believe in public service, as many public workers doubtless do.

Though I'm not sure the guv and his Cabinet got it, there was a take-away message, and it's this: It's not enough anymore to give a community money — in this case, $71.6 million of the state's $469 million capital improvement budget, which one man later characterized as  “a little crumb.” People also want a direct say in what happens in their community — hence the uproar over the PLDC, with its omnipotent, Honolulu-based, five-member board of bureaucrats and developers.

They also want to feel like government shares their concerns, and is looking out for them. So the biggest gaffe of the night came when a woman who identified herself as a healthcare worker came to the microphone and spoke of “seeing people every day who are really ill from the effects of Pioneer, Syngenta, the GMO spraying.” She then said a Kauai oncologist had told her the westside has the state's highest incidence of colon, breast and cervical cancer.” Is anybody looking into this? she wanted know.

The guv's press secretary, Donalyn Dela Cruz (whose brother Donovan, a state senator, co-sponsored the PLDC bill), tried to dismiss her with with a trite, “Thank you for bringing the issue to the table.” That's when the crowd started taking on the stirrings of an angry mob and a man yelled out, incredulously, “Somebody has to address it!”

An awkward silence followed and finally state Health Director Loretta Fuddy said no GMO-human health studies were under way in Hawaii. “I know that nationally and internationally there is a concern and they are looking at it... but we don't have the science yet.”

Which leads quite naturally to the question: since Hawaiii is ground zero, the world capital of open-air experimental testing of genetically modified crops, and a major producer of GM seed, why aren't there any health or environmental studies going on?

I recently did a short piece on the Department of Water's decision to settle a class action lawsuit with Syngenta, in part because they don't believe the pesticide is currently in wide use. So I called Syngenta to ask if they are still using atrazine on their westside corn crops. 

But they never called back, because they don't have to. They're not required to answer to the public, to be held accountable for agricultural and business practices that greatly affect our community.

And that's exactly what folks rightly fear will happen with the PLDC, and the ocean sanctuary. More layers between them and the decision-makers, no local accountability. Because as we've seen over and over again, it's so easy to blow off the citizenry when you can do so with impunity.

Iseri-Carvalho Sued Twice In One Week

Kauai Prosecutor Shaylene Iseri-Carvalho has been hit with a second lawsuit in a week, this time from a deputy who says she was the victim of retaliation because she didn't support the prosecutor's re-election campaign.

The complaint, filed Tuesday in Kauai Circuit Court on behalf of deputy Rebecca Vogt, raises concerns about equal pay, gender discrimination, free speech rights and county ethics violations. It names both the county and Iseri-Carvalho, who was sued by Councilman Tim Bynum yesterday.

Vogt alleges she was pressured to support Iseri-Carvalho, who rewarded employees she considered loyal. When Vogt did not actively campaign, she claims she was passed over for a raise, while five less-experienced male deputies who supported the prosecutor got hefty pay hikes.

As you may recall, I wrote a post on that very topic last week.

She says Iseri-Carvalho handed out the pay raises even though in March — following “sparse attendance at her major fundraiser” — she had told staff that she would be cutting salaries due to “budget cuts.”

When Vogt complained about the arbitrary nature of the raises, and their apparent unethical link to campaign support, she says Iseri-Carvalho retaliated against her, giving her more work, denying her comp time and stripping her of the authority to independently approve plea offers.

Vogt maintains Iseri-Carvalho violated the county Code of Ethics, which prohibits county employees from using their positions to secure unwarranted privileges, advantages and treatment for themselves or others. She also says her right to free speech was violated when the prosecutor punished her for speaking up.

The complaint alleges Iseri-Carvalho's actions were “willful, wanton, outrageous and oppressive,” and that Vogt suffered job insecurity, income loss, humiliation, and emotional and physical anguish as a result. The extent of the retaliation forced her to take a medical leave of absence, she alleges.

Vogt, who began working for the Office of Prosecuting Attorney in August 2010, says she had always received favorable work reviews.

Note: Sorry I can't post the complaint, but the file is too big for my upload facility. However, if you would like a copy — it's interesting reading — email me at eastsidegrrrl at yahoo.com.

Tim Sues Shay and Sheila: Claims Constitutional Rights Violated

Kauai Councilman Tim Bynum today filed a federal civil rights lawsuit against Prosecutor Shaylene Iseri-Carvalho, planning inspector Sheila Miyake and the county, claiming his constitutional rights were violated by their abuse of power and malicious prosecution.

"False and malicious criminal prosecution of political enemies is something you expect to see in the Third World, not in Hawaii,” said his attorney, former state Attorney General Margery Bronster, in a press release.

The suit alleges that Iseri-Carvalho targeted Bynum for prosecution of zoning violations, both as political payback and to keep him from questioning financial practices in the Office of Prosecuting Attorney. 

Both Miyake and Iseri-Carvalho committed acts “that amounted to an indifference to or purposeful deprivation” of Bynum's constitutional rights, the complaint alleges. As a result, he suffered severe emotional and physical distress.

It also claims that Bynum suffered significant financial hardship when a county planning employee falsely told buyers that the alleged zoning violations would transfer to the new owners, prompting them to cancel escrow. No dollar amount is specified as damages.

The complaint, which you can read in full here, also implicates former Council Chair Kaipo Asing as orchestrating events, though he is not presently named as a defendant.

The lawsuit is partly based on a secret tape recording that first deputy Jake Delaplane made of a two-tour conversation he had with Miyake.

“Incredibly, they made tape recordings discussing their plans and they joked on those tapes about committing perjury if ever caught,” Bronster said in the press release. “Councilmember Bynum’s rights were severely injured and we plan to bring everyone involved to justice.”

According to the complaint, Miyake was recorded saying, “It's all political, but I will never say on stand that it is political. It will be my demise.”

Miyake also reportedly was taped saying she and former Planning Director Ian 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.”

Iseri-Carvalho then waited a year — “until the next election cycle,” the complaint states — to file four criminal charges against Bynum.

Bynum's lawsuit stems from the criminal prosecution, which the complaint says was based on no probable cause, and Iseri-Carvalho's subsequent efforts to stifle his freedom of speech. Earlier this year, Iseri-Carvalho released a letter demanding Bynum be recused from Council discussions about the Prosecutor's office while he was facing criminal charges.

Bynum, “fearful of the Prosecutor's unprincipled ire,” sought an opinion from the county Board of Ethics, which later concluded he did not have a conflict of interest.

The misdemeanor charges were dropped earlier this year after Judge Kathleen Watanabe recused Iseri-Carvalho’s office from the case and appointed special deputy attorney general Richard Minatoya to investigate the matter. He determined the case was unprovable.

Iseri-Carvalho and Miyake are being sued as individuals, and in their official capacity. Other defendants could be added as the lawsuit progresses.

“Through the civil action being taken, I look forward to demonstrating how baseless and without merit the actions against me were,” Bynum said in a personal statement released tonight. “More importantly, my hope is that holding these individuals responsible will help prevent abuse of others and ensure that this kind of deliberate mistreatment does not happen again. I look forward to putting these issues behind me so I can focus fully on my family and my responsibilities as a Councilmember.

Bynum is alleging that Iseri-Carvalho and Miyake harbor longstanding personal animosity against him that was heightened by his 2008 vote on the vacation rental bill.

As has previously been reported in this blog, in 2010, Bynum allowed a family friend, Victory Yokotake, to reside at his house, where five years prior he had built a county-permitted addition that included a counter top/bar and sink. Yokotake was assaulted by one of her friends, and the police officer responding to the call “incorrectly characterized the addition … as a separate apartment,” the complaint states.

An unknown person with access to the police report allegedly informed Miyake and Iseri-Carvalho that Bynum was illegally “renting out a portion of his house.” Though Miyake allegedly knew the identity of the person, she treated it as an anonymous complaint. Miyake allegedly stated she pursued the complaint because “Kaipo Asing was asking.”

Bynum's complaint goes on to include an email correspondence between Iseri-Carvalho and former Planning Director Ian Costa, in which she asks if its illegal for Bynum to rent out a portion of his home and is told no — the violation would lie in whether he had installed a second kitchen, which would make it a multi-familly unit rather than a single-family residence.

While Bynum was attending a Council meeting, Miyake and inspector Patrick Henriques allegedly walked through a gate and looked through the windows of his house, where they reportedly saw a rice cooker and refrigerator in the addition.

Miyake told deputy county attorneys Mike Dahilig and Ian Jung what she had done and seen, and they advised her she had engaged in trespassing and a warrantless search, and that the presence of a rice cooker did not constitute a kitchen.

Despite their advice, Miyake went ahead and had Henriques issue a notice of zoning violation to Bynum, the complaint states. She emailed a copy to former County Clerk Peter Nakamura, who reported directly to Asing, with the subject line reading “4 your eyes only.” Bynum did not receive a copy of the notice until a month later.

The complaint alleges that Miyake sent Nakamura the email with the intent that it would be made public and used against Bynum in the election.

The complaint also maintains the planning department failed to properly train its inspectors in search laws and the county zoning ordinance, with Miyake stating that “each inspector has his own kingdom,” and that such determinations are made ad hoc, arbitrarily and in this case, capriciously and maliciously.

It details as well Delaplane's attempt to enlist another deputy prosecutor to surreptitiously solicit information from Yokotake that could be used against Bynum. The action ultimately led to the OPA's office being recused from the case, which opened it up to investigation by an outside source.

Though Bronster , in the press release, stated “I have spoken with Kauai County Attorney, Al Castillo, and he seems to understand the gravity of the situation,” Castillo said he had not seen the complaint and had no comment.

In his written statement, Bynum, who is serving his third term on the Council, said, “I also knew that politics could be tough and at times even ugly.  But I had no idea that I would be the target of major abuses of power planed and perpetrated by County officials for purely political reasons.  This blatant abuse of power has led to the difficult decision to take legal action by filing a civil rights complaint in Federal Court.  These actions by a small group of powerful people led by Prosecutor Shaylene Iseri-Carvalho have had a huge impact on my home, my family and myself.

"Many people on Kauai are coming to the realization that serious wrongdoing by our Prosecutor in a number of areas is truly hurting people, programs, institutions and our community," he continued. " It needs to stop.  Being wrongly charged and labeled a criminal required me to hire attorneys to defend myself.  In the process of clearing my name we have discovered overwhelming evidence of misconduct by Ms. Iseri-Carvalho and her allies.  The complaint we are filing speaks for itself and highlights just some of the evidence of abuse.”

Musings: Troubling Signs

Late afternoon's golden light giving way to the pinks of a gentle sunset, clouds piling up behind Makaleha, crescent moon slung low in the western sky, beginning a new cycle toward full. It's the time of day, the kind of time, in which all seems right with the world. 

So long as you don't do any digging....

Got an email from a friend in the Midwest, corn country, that read:

Was at the grocery store and a little old lady was questioning her bill. She said, I think there is a mistake, I was charged $1.99 for 1 apple. the manager was very nice and explained it was a Honey Crisp and $3 something a pound, so the price was correct. She said, I just wanted an apple, things are so expensive. For some reason it was poignant, the frustration, fear, not having any control, a little old lady just wanting an apple. Then there were murmurs among the people in the checkout line agreeing how much food has gone up. I thought to myself, things like that apple are what could set people off if the economic strain continues. I felt for the lady, obviously on a restricted income and often notice how many are on food assistance. I frequently hear Moms saying, put that back, we can't afford it. We seem to have food pantries and access for the very poor, but not for those slipping in the cracks.……

It made me think of other troubling economic signs of the times that have filtered into my awareness lately....

A third of Americans today say they are lower-class, compared to a quarter just four years ago, according to a Pew Research Center poll.

In 1962, the top 1 percent had 125 times the net worth of the median U.S. household; by 2010, they had 288 times more, reports CNNMoney.com. It seems the trend has two causes: Not only are the rich getting richer, but the middle class is getting poorer.

Locally, county officials were almost slavering over the construction jobs to be provided by the next phase of The Path — jobs that will last just six months, and aren't likely to be numerous. Because aside from the perennial road work, nothing else is happening in construction.

Into this depressed scene comes Kauai Beach Villas — the condo/timeshare project at Nukolii — with a lawsuit against the county. KBV is affiliated with PAHIO, which is led by Lynn McCrory, who has already made a tidy pile developing timeshares in Princeville.  

Old-timers remember Nukolii, and the very questionable events that led to development of a resort — now the Hilton Kauai Beach Resort — on that windy, reefy coastline.

It seems the PAHIO folks are unhappy because the new TAU ordinance — adopted by the Council in response to a citizen's initiative — won't allow them to develop another 1,000 units out there.

Never mind that the land in question isn't even zoned for 1,000 units. Or that the likelihood of finding an investor for such a development — or that many timeshare buyers — is essentially nil. Or that 70 percent of the voters approved the charter amendment that led to the TAU (transient accommodation unit) ordinance.

(As a quick refresher, the amendment took authority for processing most TAU requests away from the planning commission, which had been approving resort development at a rate far greater than suggested by the General Plan, and gave it to the County Council.)

I think what really hit me in the legal complaint was the assertion that the charter amendment and TAU ordinance “frustrate KVB's investment-backed expectations and do not substantially advance a state interest.” 

In other words, developers like Lynn McCrory are leveraging not what they actually have,  but what they expect. As for "advancing a state interest" — what, there's no value in regulating growth on an island, or carrying out the directive of the electorate?

Just kinda shows you the cheeky mentality of developers who so rarely hear the word no in Hawaii.

Carl Imparato of Coalition for Responsible Government, the grassroots group that got the charter amenment on the ballot, thinks the complaint is "without merit." But the Coalition and the county will still have to respond to it. And that means legal fees.

I only hope the County Council, which has been quick to allocate special counsel funds for the prosecutor, the mayor, the police commission and other county matters, will be equally willing to invest what is needed to fight this challenge. After all, this charter amendment was the will of the people.

Musings: On Self-Determination

I was perusing Facebook and saw a post by Andre Perez regarding Sen. Akaka's last ditch effort to get the Native Hawaiian Government Reorganization Act — aka Akaka Bill — approved before he retires. As Andre wrote:

Fed-Wreck is back on the table minus the language of creating a roll and qualification process BECAUSE... the Abercrombie appointed Roll Commission is already performing that function! So contrary to what the Roll Commissioners have been saying about self-determination, Fed-Wreck appears to have already been pre-determined. Mahalo for showing your true colors, we got yo ass...

Such suspicions are not new. As I reported in the Honolulu Weekly, when the Roll registration was launched in July:

Though some Hawaiian nationals have dismissed the roll process as a tool of the state, [Roll Commissioner Commissioner Naalehu] Anthony is encouraging them to participate. “It’s not our job to make a government,” he says, noting that the Commission will dissolve once the roll is published. “Independence, federal recognition, state recognition–all of these things are up for discussion. But we’ve got to know who is in the pool [in order] to have a discussion.” However, the press release distributed by Abercrombie’s office says the process “will eventually lead to federal recognition of Native Hawaiians.” OHA officials on hand for the launch also seemed to think that federal recognition was the goal, and that it was attainable.

Now, as Andre so vividly notes, the perception that Gov. Abercrombie's administration and the feds are actively directing the process of Hawaiian self-determination has picked up steam with news that Akaka amended his bill to reflect the Commission's work. As the Star-Advertiser reported:

The new legislation drops provisions that created a process to determine who qualifies as Native Hawaiian and enroll them as part of creating a new Native Hawaiian government. A new Native Hawaiian Roll Commission, set up by the Hawaii Legislature, is performing those functions.

By stripping out those sections, Akaka was able to cut the bill down to about 15 pages from an original 60 pages with the hope that Republican opponents would find it more palatable, since it removes the controversy over who qualifies as Native Hawaiian.

Meanwhile, Abercrombie has come out swinging in defense of another one of his proposals that's meeting resistance — the Public Lands Development Corp. In typical Abercrombie fashion, he spent more time trashing opponents than outlining any real merits of the PLDC:

Abercrombie dismissed critics in the environmental, Native Hawaiian and labor communities — including many who want the corporation abolished because of a potential threat to the environment — as the "usual suspects" who used public hearings this summer on the corporation's draft administrative rules to create "conspiratorial hysteria."

Abercrombie said opponents have appointed themselves as the public's voice and the "arbiters over what is appropriate or inappropriate in terms of development."

The article also included comments from Rep. Chris Lee, one of the few legislators to oppose the bill — alas, the Kauai contingent supported it — saying that opponents would likely need to get two-thirds' majorities in the House and Senate to achieve a repeal, since Abercrombie said he would veto a repeal bill.

Despite criticism from citizens who believe, correctly, that the public will little have sway over the actions of the PLDC, Abercrombie is urging people to give it a chance:

"You've got to put it in practice first to see what it is," he said. "Give it a chance. Give it some breathing room and see how it works."

The governor said he doubts critics are interested in improving the law, "because their attitude is, no matter what you do, no matter how you change it, you can't change it good enough to suit us."

"Because the only way that would work, is that you would agree with us in the first place that you've got to pass anything you want to do past us first. We've got the imprimatur first."

"My support? It gets stronger," the governor said. "When I see people out there pushing people around. When I see people out there saying ‘We get to decide.' What do you mean we get to decide?

"The legislators ran for election. I ran for election."

Ummm, except the guv and legislators aren't the ones who will be calling the shots on PLDC decisions. Those will be made by an un-elected board comprised of state agency heads and development interests. And the people, quite rightly, are saying no, we want to have a say on how public lands, Hawaiian lands, are used. Because frankly, we don't trust you.

Musings: Antidote to Ugh

Awoke in darkness unsettled by dreams of another 9-11 type event, planes flying into buildings, not that it was even happening where I was, but reports of it were enough to send people around me into fear, panic, pandemonium, chaos.

Ugh....

Made the mistake of lying in bed and looking at Yahoo news headlines on my I-phone, so much of it tales of war, threats of war, Netanyahu beating the drums for war. And in the midst of it all was Defense Secretary Leon Panetta warning us to expect more turmoil in the Middle East, more conflict in Asia that could embroil the U.S. 

But don't worry, because we're telling them to solve their problems peacefully, not that we ever have, so just in case, we're building up militarily, we'll be ready with our guns and bombs, with the Osprey helicopters that Oahu and Kauai folks don't want, the Okinawans don't want, but we'll be getting them, anyway.

Ugh....

Down to the beach, seeking an antidote in sun shimmer and shifting sand, and then clouds blew in, and raindrops fell, well-spaced, but hard, bouncing off the still sea, thrilling me, and also soaking me, though I didn't care, because I was going in anyway, and when the sun came out again, I did, moving through and over the patterns formed by shafts of light penetrating clear water.

Pranayama, performed sitting on wet rocks steaming in the building heat, pushed the ugh factor down, but not completely out, and I was aware of a small grrrr remaining in me as the dogs and I piled back into the car, headed down the highway. I flipped on the radio, hoping it was time for New Dimensions, and thankfully, it was, with Barbara Marx Hubbard saying, as I rifled through my backpack for paper and pen, “We are at a place where we are aware of evolution and can affect it by our actions.”

So what will those actions be? War, or peace? Hate, or love? Evolution or extinction?

“Nature selects for species that can cooperate and adapt,” she adds, and I'm wondering if enough of us can, and are.

“While some people are getting reactive,” she says, “other people are wanting to connect.”

I sense this, I feel this, but it still seems fragmented, distant.

“The community of the awakening heart is connecting very rapidly on the Internet,” she says, and I want to believe, because the opposite is more hate, more violence, more ugh.

“The folks who are going to do this are not the president and vice president, but us,” she continues, and I know that to be true, because, as she goes on to say, “the farther up you are in the old pyramid system, the harder it is for you to effect change.”

Then she quotes a proverb: “Where there is no vision, the people perish.”

And as the grrr dissipates, I see, like the shimmering path cast by sun on sea, a vision of cooperation, respect, harmony, love for the mother, peace.

Musings: Begging For a Sell-Out

I spent a little time in my bee hives this morning, an activity that always gets me humming on the right vibration, especially when I see that they are healthy, happy and honeyed. There's something about being in the bee space that makes time stand still, banishes all extraneous thoughts. It's the ultimate bee here now experience. 

Returning to the human world, I learned the Planning Commission's subdivision committee voted to defer until Oct. 9 a request for an unprecedented eight-year extension of the permits to develop 2,029 acres of agricultural land at Kealia into gentlemen's estates.

Sixteen people spoke in favor of the extension — primarily people who stand to personally benefit from the developer's promise to build a poi mill, donate public park land and fix up the Kealia rodeo grounds.

It struck me that even though people typically bitch and moan about how elected officials and appointed boards sell us out, when it comes right down to it, you've always got some people who are literally begging for a sell-out, because it serves their personal interests.

We've seen it happen time and again: a developer co-opts some members of the community with small promised favors, and they in turn happily sell the rest of us down the river.

And so it is again with those who are all too happy to get in bed with the ag land speculators so they can score a poi mill or a rodeo ring or 14 acres for a park that the county will have to develop and maintain. 

Never mind that the land has already changed hands twice in the last five years and most likely will again once the valuable permit extensions are in hand. They want what they want, so they're willing to go speak in favor of 188 CPR “ag lots” that will be sold at prices no real farmer can afford.

Because they're so fixated on their own interests, they've lost sight of the bigger picture: the true cost of having 2,000 acres gentrified, and of setting precedents that other developers will demand.

What's really sad is our planning director and his staff recommended the Commission reject the extension request because it was such a bad deal for the county, for the community at large. After years of having us harp on them about stopping the endless extension of permits, they're finally stepping up and doing the right thing. They even urged the Commission to reject another extension request for a project near Kapaa Middle School that has somehow morphed from 55 farm lots into 700-plus homes.

But rather than applaud the staff for finally getting it, the self-servers say no, let it go, because we've been promised some goodies that are just too tempting to resist.

In another matter, but on the related topic of selling out, if you're at all interested in water issues, please check out my Honolulu Weekly article on the recent Supreme Court decision regarding the allocation of water from four streams on Maui. We have the laws in place, and the high court is willing to uphold them, but self-serving interests undermine the public trust, and the public good

Here's an excerpt:

Though the Commission [on Water Resource Management] was created to be the people’s champion in protecting water as a public trust resource, it has frequently sided with the corporate interests that divert streams, resulting in protracted court battles and repeated slap downs from the high court. Since CWRM’s inception in 1987, the Hawaii Supreme Court has reversed five Commission decisions–a higher rate of reversals than any other state agency.

Musings: Big Rewards

Going out into the pre-dawn darkness and looking up, my reward was a celestial pyramid, with Venus and Jupiter comprising the base and a gleaming sliver of moon the point. It's the 20^th anniversary of Iniki, the storm that changed my life by rewarding me with insight: material possessions are essentially meaningless, and significant joy can be found in simplicity.

A review of public records shows that Prosecutor Shaylene Iseri-Carvalho has given significant pay raises to deputy prosecutors who are supporting her re-election campaign.

The most substantial increase went to Charley Foster, who received a 45 percent pay hike within six weeks of starting work for the Office of Prosecuting Attorney. Foster, whose pay rose from $70,000 on Aug. 1 to the maximum allowable of $101,066 by Sept. 1, has devoted considerable space in his Planet Kauai blog to campaign-related issues and topics that reflect favorably upon his boss.

Lance Kobashigawa, an attorney who has been licensed to practice for about a year, gave $300 to Iseri-Carvalho's campaign and has a Shay bumper sticker on his car. Iseri-Carvalho increased his annual salary from $80,000 on Aug. 1 to $95,000 on Sept. 1, taking him to a higher pay rate than a deputy who has more experience and a heavier case load, but who has not engaged in any campaigning. 

Jared Auna, who has been licensed about two years and attended Shay's July fundraiser, was given a raise that took him from $85,000 to the maximum of $101,066 — the same pay earned by a prosecutor with two decades of experience.

Foster denied rumored reports that he'd gotten a hefty pay raise. On Sept. 3, Foster left a comment on his blog, in which he stated:

I do not make $100,000 a year and I have not received any raise, much less "a $30,000 raise." Nor have I received any information that I am to get such a raise. I can only hope the rumor mill is better informed than I am. If so, great!

However, county personnel records show that on Sept. 1, Foster was making $101,066.

Foster's blogging had dwindled to just one post in May 2012 and none in June and July. But in August, shortly after he began working for the OPA, he stepped up the pace and published 19 posts, 11 of them addressing campaign issues involving Iseri-Carvalho and the OPA.

His August posts included Solette Perry's endorsement of Iseri-Carvalho, criticisms of the County Attorney in regard to the POHAKU investigation, clarifications about the special counsel hired to represent OPA in the POHAKU controversy, reprint of an article referencing the POHAKU investigation as a “political vendetta,” criticisms of me for exposing misinformation perpetuated by Iseri-Carvalho, and a flawed legal defense of Special Counsel Gary Slovin's opinion about POHAKU procurements.

Foster also posted coverage on the Council debate over OPA's victim-witness grant application, photos of the “public safety” meetings staged by Iseri-Carvalho and Councilman Mel Rapozo and the prosecutor's debate, a reprint of an article criticizing the County Attorney's treatment of Iseri-Carvalho and a disparaging reference to the credibility of my later confirmed report that four EEOC claims against the OPA had been settled.

By September, Foster was making references to County Council members who are “inherently hostile” to his boss, He also vigorously argued Iseri-Carvalho's position on the EEOC complaint involving Erin Wilson, to the point of presenting false information and making snarky comments about Wilson's credibility. For example, he claimed in his post headline that the “EEOC found no reasonable cause to believe that discrimination occurred” in the Wilson case. In fact, the EEOC had referred the case to mediation before issuing any findings at all.

On Sept. 8, he published a post that offered the prosecutor's take on the county's $120,000 settlement of a racial harassment claim brought against Iseri-Carvalho by former deputy prosecutor Shannon Weigel.

The post included outright fawning, emphasis added:

Shay also denies ever suggesting anyone should “assimilate into the culture,” insisting first of all that the word is entirely foreign to her vocabulary (Shay expresses herself in a thick, earthy pidgin creole sprinkled when necessary with legal terms of art, which, in the interest of full disclosure, I confess I find very cool), and denies second that she harbors any opinion that anyone should assimilate in any case.

The post also misrepresented an email from a judge as raising concerns about a conflict of interest with Weigel and her then-boyfriend, an attorney seeking court assignments. In actuality, the judge was supportive of Weigel.

And in defense of Iseri-Carvalho's position that the EEOC settlements were part of an election year conspiracy against her, perpetrated by the County Attorney's office, Foster wrote:

Clause IV of the conciliation agreement, titled “Disclosure,” states:

“consent is hereby given and it is agreed that disclosure to the public of the terms and the agreement is explicitly permitted.”

This is the opposite of the venerable and usual non-disclosure clause in which parties agree to forego smack talk after the agreement is inked. Here, the county attorney “explicitly permitted” and, one assumes, intentionally invited the complainant to talk stink in the press about the OPA. The clause also gives the county attorney cover to do the stink talking he’s been indulging in the last few days at the OPA’s detriment in the press lately (see, e.g., the Civil Beat article linked above). 

In fact, it was Weigel who insisted upon the disclosure cause because she was adamant that the public and other county employees learn about the harassment she had experienced at the OPA.

Though the county Salary Commission sets the pay range for deputy prosecutors, the Prosecutor enjoys wide latitude in setting salaries for individual deputies.

Musings: Revisiting

I sensed light in the darkness and opened my eyes to see a golden wedge of waning moon rising through the trees. It was still out there, but higher and whiter, and escorted by the bright beacons of Jupiter and Venus, when I revisited it as the dogs and I went walking this morning.

It's not every day that the Planning Commission gets to revisit — and hopefully correct — a bad decision, but that day is coming tomorrow. That's when Kealanani — the Kealia “ag subdivision” across the highway from another enclave of gentlemen's estates, Kealia Kai — is asking for an unprecedented eight-year extension.

The developer not only failed to meet the five-year deadline for completing infrastructure, it hasn't done any construction at all. Now it wants more time. I was amused to see the reason listed in the planning staff report: “The delay has been attributed to the complexity and overall size of the project.”

While the project is no doubt large — they want to develop 2,000 acres into 188 CPR lots — it's been plagued with financing problems, including one foreclosure, and has changed hands twice in the past five years.

The developer also wants to substitute its existing surety bond for the project with an $18.4 million mortgage held by the County, prompting county planners to note that foreclosure and liquidation in the event of default could cost the County “substantial amounts of time and money.”

Yes, I know it's pretty cheeky to come to the County with a “deal” like this — a deal that could be withdrawn if the developer fails to prevail in its property tax appeal. But it's not surprising, considering the developer previously managed to convince ousted Planning Director Ian Costa, the Planning Commission and the state Land Use Commission that this was a “real” ag subdivision, as opposed to the usual gentlemen's estate.

Even the New York Times took that bait, running an article on how Kealanani was “preserving Kauai's rural heritage” because landowners would be required to actually farm their farm lots. But with parcels priced from $500,000 to $3 million back in 2007, it was obvious that farmers were not the targeted market.

Now the developer is also claiming that more time is needed to complete “community improvements,” including fixing up the Kealia rodeo site and donating it to a nonprofit, building a poi mill, fixing up Kealia Store and donating a 14.7-acre lot to the county for a sports park. However, the planning staff report says there's no guarantee that such “improvements” would actually be made.

Oh, and remember how the developer claimed it would build 100 units of affordable housing? According to the staff report, “No affordable housing units are proposed either in the original or modified proposal.”

The planning department is recommending that commissions deny the request for an extension, noting in the staff report, “Given the totality of considerations, the Department believes the Developer is engaging in land banking at the cost and high risk of County taxpayers.”

Gee, ya think? Can it be that county planners are finally wising up to developers' tricks? And I just about fell out of my chair when I read this part:

“The Department believes this project runs counter to the public desire for less residential development on ag lands, and the need for affordable housing.”

Amazing. The planning department is finally listening to us, and responding appropriately. The question now is whether the planning commission will go along and do the right thing — or sucker under yet again to a land speculator's shibai.

Oh, and I just can't resist this little political tidbit..... Justin Kollar won the most beautiful barong (shirt)  competition at Saturday's Kauai Filipino Women's Club Terno Ball, prompting his political opponent, Shaylene Iseri-Carvalho and her entourage to walk out in disgust, and resulting in this "politics makes strange bedfellows" photo. Yes, it seems Councilmen Mel Rapozo and KipuKai Kualii — both stanch Shay supporters — were first and second runner-ups, respectively. Councilman Dickie Chang was emcee. Justin is the one with the biggest trophy.

Musings: If It's the Last

Looking through screen, a spider web, at a backlit green mountain scene of sun shafts and westward floating clouds, and in the foreground, the papery white seed pods of African tulip trees falling like light snow as honey bees ping here and there.

We are well into September already, hurtling toward winter, days noticeably shorter, mornings markedly darker, afternoon light that distinctive deep gold. Summer, though that's technically what this still is, seemed brief this year.

But then, time seems accelerated, my sense of it is distorted.

And it's not just because I'm getting older, as I learned in a conversation with a 20-something woman who confided, “This year has flown by, at least for me, which is kind of freaky, especially if it's the last. I've really blown a lot of time if it's the last.”

Musings: Local by Injection

Prosecutor Shaylene Iseri-Carvalho's dirty laundry is finally being aired in the statewide mainstream media, with Honolulu newspapers and TV stations, Civil Beat and even The Garden Island covering the EEOC racism finding I reported yesterday.

Shay, in turn, is blaming it all on an election year conspiracy perpetrated by County Attorney Al Castillo.

I had a chance to chat yesterday afternoon with former deputy prosecuting attorney Shannon Weigel, who revealed what prompted her to file a complaint of racially-based harassment against Shay.

Things got off to a rocky start when Shannon and her then-boyfriend — both recent Boston law school graduates studying for the bar exam in Hawaii — were recruited by a former law school classmate to work in the Kauai Office of Prosecuting Attorney (OPA). They were both officially hired in 2009 and moved to Kauai to start work when Shay announced the boyfriend's position no longer existed and he would not have a job at the OPA after all.

Shannon did begin her new position, but said it “started to get a little weird” when Shay “started making comments about me being a haole. She said I needed to show I was serious about being assimilated into the Hawaiian culture.”

Shannon says that Shay got more direct at an OPA party, telling Shannon and another white attorney from the mainland that “we needed to be more like my friend [the law school classmate], who was dating a local boy. She said it looked better to the community if we had these inter-racial relationships, instead of like haoles from the mainland. That was kind of weird."

After that, Shannon says she rarely saw or spoke to Shay, who was frequently out of the office. “My case load was so high because we were so short-staffed that I was working 70 to 80 hours a week and coming in on Sundays. She never talked to me, never cared what I was doing. When I did see her, she was always making rude comments, like before an office potluck, she asked me what I was going to bring, was it going to be mainland food, or some edible Hawaiian food.

“It was very discouraging working for someone who made these kinds of comments and couldn't care less for you, even though you were working hard. I had no support and no training.”

[As an aside, Shay apparently spent much of the OPA training budget to finance her own extensive travels on the job. I'll be delving into her travel expenditures in a future post.]

Meanwhile, Shannon's boyfriend was struggling to find steady legal work on Kauai. He was doing contract work for private attorneys and got two cases through court appointments, Shannon says, “but Shay fought this. She didn't want him to have any other cases on the island.” The boyfriend even volunteered at the OPA in hopes of getting a job, but Shay put a stop to that after a week or so.

Shannon says that Shay finally sent an email to the attorney friend who had recruited her, saying “Shannon has to figure this out: either break up with her boyfriend or quit. That was the ultimatum she gave to me in early February. She said it would be a conflict if I was working there and he [the boyfriend] was taking any cases on Kauai.”

In the email, Shay said the issue needed to decided that day and scheduled a meeting for noon, but kept pushing it back until the end of the day, Shannon says. During the hour-long meeting, Shannon and her friend went through every possible scenario, trying to get Shay to explain how the relationship constituted a conflict.

“But she wasn't going for it," Shannon says. "For her, it was my way or the highway. I told her I felt she'd singled us out. The judges didn't have a problem with us, other attorneys didn't have a problem with us. There are so many people [in the judiciary] who are related to one another, dating, married. It's very common in this small community. But she never changed her mind about anything. So I left the office that day. It was really upsetting.”

“I was totally bewildered by the whole thing. I was thinking, I can't believe this lady is doing this to me. It's so wrong on so many levels. I don't know what I did to her. I liked it there and got along with everyone else. I was told I was doing a good job. It was definitely something she had against the guy I was dating. There weren't that many Caucasians working there at the time and they all had issues with her, so it's definitely a pattern.”

Unable to find work on Kauai, and with Shay fighting her unemployment claim, Shannon moved to her home state of Colorado, where she had to study for and pass another bar exam. She said it was difficult applying for jobs because she had no reference from Shay and it was awkward to explain the circumstances that led to her leaving her previous post.

“I wanted to be a career prosecutor,” Shannon says. “It was really hard for me from the time I left that office to where I am now. It took 14 months for me to get a job.”  She and her boyfriend, who remained on Kauai, also broke up.

Shannon says she initially “thought of letting it go and moving on, but maybe because I went to law school, I have this whole principle thing going on. That was just really wrong what she did. She shouldn't be allowed to do that to anyone else. And she's never held accountable for it? I wanted something to be done so it wouldn't happen again, or at least so it would be deterred. Of all people, that's someone who should not be acting that way. ”

Shannon says it took two years for the case to be resolved. “Shay declined mediation in my case so they [EEOC] kept the investigation open. I didn't know if it was going to go anywhere, but then they [EEOC] made the finding [of cause] two months ago, and after that, the county was eager to settle."

Shannon negotiated for a settlement of $120,000.  "I'm sure I could have gotten more if I'd filed a civil suit, but it wasn't about the money. I wanted her [Shay] to be held responsible, finally, or show a little remorse at least. Maybe through these [EEOC training] classes the county has to go through it will increase a little awareness.”

When asked if she'd gotten an apology from Shay, Shannon laughed.

“God, no. Absolutely no. She fought it every step of the way, denying it, saying I was fired for talking back to her or something. I just wish she would stop treating people that way. That was the main reason I filed this complaint. She never thinks she's ever in the wrong.”

Musings: Racial Harassment at OPA

I'm not sure which is best: a bouncing welcome home from my two dogs, sleeping on clean sheets in my own bed or watching the web of lies and distortion spun by Kauai Prosecutor Shaylene Iseri-Carvalho and her supporters continue to unravel.

Yup, we've got another report of racial harassment, and this time it's coming straight from the federal Equal Employment Opportunity Commission (EEOC). The agency issued a press release this morning that states “Kauai County will pay $120,000 to settle a federal charge of race harassment.”

The charge was filed in 2010 by Shannon M. Weigel, a white woman who was formerly employed as a deputy prosecuting attorney in the Office of Prosecuting Attorney (OPA). According to the EEOC release, Shannon “alleged that she was harassed due to her race by a top-level manager. The manager allegedly made continually disparaging comments to the former attorney, saying that she needed to assimilate more into the local culture and break up with her boyfriend at the time, also white, in favor of a local boy.”

The “top-level manager” was Shay herself, who allegedly told Shannon that she was never going to get ahead here on Kauai so long as she had a haole boyfriend. And the way it works is that when top managers behave badly, the county — as in the taxpayers — pay the price. So far, as I've previously reported, the county has paid out $223,000 in EEOC claims against Shay and the OPA.

The press release goes on to state (emphasis added):

The EEOC ultimately found reasonable cause to believe that the county violated Title VII of the Civil Rights Act of 1964 for the harassment to which the former attorney was subjected. Following the determination, the County of Kauai entered into an over two-year conciliation agreement with the EEOC and the alleged victim. The agreement effectively settles the case administratively, thereby avoiding potential litigation. Aside from the monetary relief, the county agreed to establish policies and complaint procedures dealing with discrimination and harassment in the workplace and to provide live EEO training to all managers and supervisors. The county further agreed to post notices on the matter on all bulletin boards throughout the county and to permit the disclosure of the settlement.

"The workplace is no place for derogatory remarks pertaining to race or any other protected basis, and it is important for an employer to take immediate corrective action when faced with illegal harassment," said Timothy Riera, director of the EEOC's Honolulu Local Office. "We commend the County of Kauai for expeditiously resolving this matter and agreeing to measures which will prevent and deal with both harassment and discrimination on the job."

So how is the Shay team — especially her taxpayer-funded junior deputy blogger — gonna spin this one? They, and he, can't dismiss it, like they did Erin Wilson's settlement, by claiming no reasonable cause of discrimination was found. Because in this case, the EEOC actually did do an investigation and did find reasonable cause.

Surely they can't claim, at least, not with any credibility, that the EEOC is also in on a conspiracy to settle these cases to discredit Shay right before the election.

And Shay and her top deputy, Jake Delaplane, can't possibly continue to play dumb and pretend that they knew nothing about any of this until Justin Kollar revealed it during the recent prosecutorial debate. I mean, the county was in discussion on Shannon's case for over two years, and Jake himself attended the Honolulu mediation sessions in Erin's case.

Actually, what Shay and Jake have contended is they didn't know the dollar amount of the settlements. So what? They still knew that the office they manage had received four EEOC complaints. And that's significant, when you consider that all the other county departments combined got just two such complaints in the same four-year period.

At any rate, I'll have more details on this case in tomorrow's post. And I sure hope The Garden Island, which has just a tiny wire service report on this today, digs a little deeper and doesn't sweep it under the rug or let Jake lie and spin, like it did with the Erin Wilson story.

Speaking of lying and spinning, I wonder how Shay is doing on that “full and fair investigation” she promised during the debate into the $1 million supposedly missing from the county, now that even her two supporters on the Council approved a bill settling up the accounting discrepancy.