i L i n d

Ian Lind • Online daily from Kaaawa, Hawaii

i L i n d header image 1



Police Commission chair should resign in wake of yesterday’s extraordinary action in federal court

December 17th, 2014 · 4 Comments

Yesterday’s extraordinary events in Honolulu’s Federal District Court, and the response of the chairman of the Honolulu Police Commission, demonstrated again that “police accountability” is a contradiction in terms here in our fair city.

It’s time for the commission chairman to step down, and for new leadership to shake up the commission and its approach to its duties. The City Council and the mayor also have to be held to account about the sad state of affairs.

Yesterday’s major shock was the decision by federal prosecutors to throw out charges against Gerard Puana, uncle of the wife of Police Chief Louis Kealoha. Puana had been accused of stealing the mailbox from the chief’s former house in Kahala, following an investigation by HPD.

The move, according to news reports, was taken after prosecutors reviewed evidence collected by Puana’s attorney, Alexander Silvert, who has publicly alleged police misconduct in the case.

According to the Star-Advertiser:

Silvert said he met with prosecutors following the mistrial because he and Puana decided to put their faith and trust in the integrity of the U.S. Attorney’s Office. “We presented our entire case, from top to bottom, to the prosecutors,” Silvert said. He said that included evidence he and investigators from his office uncovered during their own investigation.

Silvert said he also told federal prosecutors what eight of the jurors told him after Kobayashi had discharged them.

“All eight had said to us that after they saw the videotape (of the theft), they had already decided (Puana) was not guilty,” Silvert said.

Here’s the top of the title page from the docket of Puana’s federal court case, stamped simply, “Closed”.

[text]

But the story isn’t that simple.

The dismissal is a big deal on its own. But prosecutors went further, dismissing the case “with prejudice,” meaning that charges cannot be refiled, and asking the FBI to review the evidence, presumably to consider whether crimes were committed by police.

According to Hawaii News Now:

“This is the first time I’ve ever seen this happen,” says legal expert Ken Lawson, a University of Hawaii law professor, “The prosecution… not just dismissed it, but dismissed it with prejudice. And ‘with prejudice’ means not only are we dismissing your case, but we’re never bringing it back.”

Lawson is not involved with this federal trial, but has worked many federal cases in various states.

“There’s cause for great concern,” he says, “If I’m the chief of police, I’ve got a lawyer now.”

Prior to yesterday’s dismissal, there was a flurry of communications between prosecutors and attorneys, all of which were sealed and unavailable for public inspection. Click here for a list of documents filed with the court under seal since the December 4, 2014 mistrial, which was caused by Kealoha’s unsolicited disclosure of information about Puana’s history during his trial testimony. Observers say it was a rookie error, and unusual for an experienced police officer.

Instead of expressing concern about the unusual turn of events, which puts HPD in a very bad light, Police Commission Chairman Ron Taketa came out sounding like a spokesman for Chief Kealoha rather than the head of a panel which is supposed to provide independent oversight of the police on behalf of the public.

Without seeing any of the evidence that prompted the about-face by federal prosecutors and another federal investigation of HPD, Taketa used the opportunity to vouch for the chief.

The Star-Advertiser reported:

Police Commission Chairman Taketa said he believes the commission’s hands are tied in making public statements about the mistrial because a federal investigation is underway and because the department has rules about releasing personal information about police employees, including the chief.

And if the chief were found guilty of any wrongdoing, any discipline would likely be confidential because the case is considered a personnel matter.

Taketa added, however, that the commission holds the chief to a higher standard than other city employees and that he has been forthcoming with the commission, alerting it to his family dispute.

“He was honestly sincere about apologizing for what he said,” Taketa said. “He just admitted that it was error and it was spur of the moment and he regretted it.”

He continued: “The mistrial was the furthest thing from his mind as to what he wanted coming out of that trial. There’s actually in my opinion no reason to believe that he would have benefited from a mistrial.”

At minimum, I would have expected someone in Taketa’s position to express serious concern about the extraordinary circumstances and pledge to take action if the evidence, or the FBI probe, reveals departmental misconduct.

Instead, we had the chairman singing the chief’s praises, as if none of the other events of the day had taken place.

Taketa, the financial secretary and business representative for the Hawaii Carpenters Union, was first appointed to the police commission back in about 1990, and served for at least 15 years, and was appointed again in 2011. It would appear that his relationship is far too cozy with HPD to exert any real oversight.

→ 4 CommentsTags: Court · Crime · Labor · Politics

Hilo at dawn: Four views

December 16th, 2014 · 1 Comment

Four views of Hilo at dawn, from our early walk during the brief stay in Hilo over this past weekend.

Click on any photo to see a larger version.

December 2014

December 2014

December 2014

December 2014

→ 1 CommentTags: Photographs

Uncle George and Me

December 15th, 2014 · 10 Comments

Volcano House PortraitA selfie, “Uncle George and me,” taken on Saturday at the recently renovated Volcano House in Hawaii Volcanoes National Park. It was a mind-bending experience for me, as past and present collided.

We were at the Volcano House to meet with one of Meda’s colleagues from UH Hilo, who lives in the volcano area.

When you enter the lobby area of the Volcano House, you’re drawn into the viewing areas which offer a panoramic view of the Kilauea Caldera towards Halemaumau Crater. As the mist drifts past, the view comes and goes.

December 2014

And on one wall there’s a large photograph of the original hotelier, George Lycurgus, who was known to everyone as Uncle George. According to the small plaque accompanying the portrait, Uncle George died in 1960 at the age of 101.

The year before, in late 1959, when I was 12 years old, my family stayed at the Volcano House. Two events made that stay memorable. First, my parents introduced me to Uncle George, who could usually be found in the lobby with his cribbage board and cards nearby. And I went on to lose a cribbage game to the old man. I remember thinking that he was unbelievably old, with big hands, heavy nails, parchment skin. He reminded me of the Galapagos turtles at the zoo, ancient, but slow, steady, and very much alive. And he could play a good game of cribbage.

The second event came in the dark of night, when we were rousted from our rooms by the ringing of a metal alarm triangle being sounded, and a warm glow reflecting in the fog outside. People were shouting the news. Madame Pele had returned! An eruption had started, and lava was fountaining hundreds of feet into the air at nearby Kilauea Iki crater. We hurriedly dressed, piled into the car, and followed directions to an area across the crater from the vent. I remember the roar, like a jet engine, the heat, and the awesome sight of pulsing fountains of molten lava and ash spewing high into the air. It’s one of those experiences you never forget. And I’ve got an autographed booklet about Uncle George to go with the memories.

Meanwhile, there are other inherited memories of the volcano as well. Several years ago, we came across a series of small snapshots taken in 1920 when Meda’s grandparents were honeymooning in the volcano area.

1922And in 1922, UH Professor Carey D. Miller visited the Volcano House, and included several photos of the volcano area in a scrapbook documenting her first year in the islands. The hotel looked very much like it does today. If you click on this photo, you can then page through Miller’s other volcano photos. Quite an adventure at that time!

And there were my dad’s recollections of traveling to the Volcano House soon after the start of WWII. He sold restaurant supplies, and were hired to install a new kitchen after a fire destroyed much of the old building. Here’s a bit of what he remembered:

Uncle George Lycurgus was the head there, assisted by his son, Nick. My calls on the early trips were via the jitney. Uncle George was a very personable man and concerned about his establishment. It was necessary that I find a room for the night and there were no rooms available. After several discussions with Nick and his father concerning their kitchen renovation, the day was coming to an end and I still did not have a room, so Uncle George asked if I would mind sleeping in a closet under the stairway. He gave me a warm blanket and at no charge a place to stay for the night.

A well-planned kitchen was finally delivered about ninety days later. On that trip I had to get to the Kona side of the island and there was no public transportation. Nick told me there was a possibility of working out a ride with the mail man serving the Kona district, who would be showing up soon, providing I didn’t have to be in Kona until early evening as mail had to be delivered en route.

That was a great trip, my first to the Kona area. The mailman, Mr. Lincoln, was related to Abraham Lincoln and his father lived along the Kona coast. We stopped to see his father, who lived in an old home with a giant avocado tree fronting it. I was pleased to have met his dad and left with a big bag of avocados.

You can read more of his recollections here.

In any case, I not only found myself bouncing back and forth between the memories of 1959 and the present, triggered by the great photo of Uncle George as I knew him back then, while swirling in the background were those inherited, multi-generational memories. All that, and a wonderful view, made for quite a lunch.

→ 10 CommentsTags: History · Photographs

The sale of Hawaiian Electric shouldn’t have been a surprise

December 14th, 2014 · 4 Comments

A couple of days ago, Henry Curtis (Ililani Media) walked through the available clues that should have provided some advance warning of Hawaiian Electric’s openness to a potential sale (“The Inside Scoop on HECO’s Four Year Death Cycle“). That is, if we had local business reporting that focused on in-depth understanding of the largest local companies and industries. My impression is that this in-depth and ongoing reporting isn’t part of the current assignments made by of our daily broadcast or print news.

Set against the backdrop of Hawaiian Electric’s jousting with the Public Utilities Commission and its difficulties in defining a forward-looking business plan, Curtis keyed on the role of HEI executive Alan Oshima.

Sometime in May 2014 Alan Oshima, Hawaiian Electric Industries (HEI) Executive Vice President (EVP) for corporate and community advancement received an additional job title as a member of the HECO Executive Team.

There was no public announcement made of Oshima’s new position.

This probably indicates that Nextera had made contact with HEI.

Oshima had a history of being involved in corporate mergers and reorganizations.

The first involved Citizens.

Frontier Communications Corporation was formerly known as Citizens Utilities Company (1935 – 2000) and then Citizens Communications Company (2000 – 2008).

In 2000 Citizens sought to sell their Kauai Electric Division to the newly formed Kauai Island Utility Cooperative (KIUC).

In Hawai`i Public Utilities Commission docket 2000-0108 Alan Oshima represented both the buyer and the seller. The deal was overpriced and was rejected by the Commission.

In 2002 the Public Utilities Commission opened docket 2002-0060 to review a second attempt by Citizens to sell their Kauai operations to KIUC. The price was lowered by nearly $100 million. Alan Oshima represented only the seller. The Commission approved the purchase.

In 2005 Oshima served as the lead Hawai`i regulatory counsel to the Carlyle Group in its acquisition of Verizon Hawaii.

Oshima served as Hawaiian Telcom’s General Counsel, Senior Vice President, and Corporate Secretary (2005-08).

In 2008 Oshima joined the HECO Board. During these HECO days, Oshima helped Hawaiian Telcom to emerge from reorganization in 2010. In 2011 Oshima moved to the HEI Board.

During May 2014, the month that Oshima received his new role, HECO CEO Richard M. Rosenblum announced that he would be gone within a year.

The clues were there, almost begging to be explored, but went unnoticed. And the result was shock and surprise when HEI suddenly announced that it had cut a merger deal with NextEra.

Local business reporting is far too often simply restating quarterly or annual financial results from company press releases, without much in the way of independent analysis.

I can clearly remember attending the 1994 conference of Investigative Reporters and Editors, my first experience to learn from other great reporters, and sitting in on a panel featuring Mary Fricker. She was a business writer for the Santa Rosa Press Democrat at the time, and I knew her name as one of the authors of a dynamite book about the savings and loan crisis, “Inside Job: The Looting of America’s Savings and Loans.” By the way, that’s still a great read if you can find a copy.

In any case, Fricker, who was assigned to cover banking, described her regular routine used to report on local area banks. She was an incredible document reporter, and she scoured all sorts of available financial reports, probably ending up knowing more about the condition of the banks than most bank executives, and certainly more than most business reporters.

Here’s the tip sheet that she distributed at that panel. It’s still a pretty impressive outline of what goes into this kind of comprehensive reporting.

When I went looking this morning, I found a couple of great items about Fricker.

One is a column based on a 2010 interview with Fricker, “Modest Mary, the reporter’s reporter.”

It begins:

Mary Fricker gets a girlish glee, even now at 69, when she speaks of her profession.

“I’m a reporter,” she nearly shrieks before running her hands spontaneously through her white hair and then raising her arms triumphantly.

All of us, regardless of career, should love our work as much as she loves being a newspaper reporter. And it’s the reporting — the investigating, the endless research — that she loves the most. She doesn’t fancy herself as a great writer.

I can’t help loving that description. It’s the way I felt about reporting when I had the luxury of a newspaper job. And I still feel it, on occasion. In any case, it’s a great column.

And then watch Fricker in this 2012 speech about reporting on the 2008 financial crisis. She confesses the sense of having failed her readers by failing to understand the potential for a collapse of the financial system. She holds out a very high standard for business and financial reporting, the kind of reporting that might have seen the sale of Hawaiian Electric hidden in plain sight among the various layers of corporate documents and actions.

And so it goes on this Sunday morning.

→ 4 CommentsTags: Business · Media · Politics

Hawaii Supreme Court opinion appears to undercut full public access to government records

December 13th, 2014 · 5 Comments

Thanks to Honolulu attorney Rebecca Copeland’s “Record on Appeal” blog for calling my attention to a recent Hawaii Supreme Court case with unsettling implications for public access to government documents (“County has no legal duty to maintain records“).

Here’s her mini-summary of the case:

The case involved property on the Big Island. Molfino purchased the property intending to subdivide it. Molfino’s search of the County of Hawaii’s records revealed that the property had never been granted a subdivision for more than two lots. He sought a determination from the planning director, Yuen, for the approval of a seven-lot subdivision, but was denied. He then sold the property since he was unable to develop it. After he sold the property, Yuen approved the new owner a seven-lot subdivision. Later, Molfino learned that the property had, in fact, been approved for a six lot subdivision, but the record of the approval was not in the subdivision records when Molfino reviewed them on several occasions before he sold the property. He sued the County for negligence in failing to maintain proper records.

Here’s a slightly longer version lifted from the Supreme Court’s opinion in the case.

Molfino wanted to create a subdivision on the property. He visited the Planning Department and made copies of the property’s TMK file. Based on the property’s zoning classification, Molfino
understood that his property might consist of only two pre- existing lots. Allegedly missing from the TMK file at that time was an April 2000 letter from a realtor to the former Planning Director, which requested a pre-existing lot determination, and the former Planning Director’s May 2000 response letter, which stated that the property consisted of six pre-existing lots.

Mollify sued the county after he sold the property and only later learned of the key documents that had been missing from the file. In his lawsuit, he alleged the county “breached a legal duty to use reasonable care in maintaining the TMK file, and that this breach caused Molfino monetary damages.”

The lawsuit pointed to county rules, and later to the sate public records law, Chapter 92F HRS, and argued the county had an obligation to make all records available to the public.

The rules state, in part:

All public records shall be available for inspection by any person during established office hours unless public inspection of such records is in violation of any other state, federal, or county law….

Similarly, Chapter 92F provides:

All government records are open to public inspection unless access is restricted or closed by law.

The county argued that although the law required public inspection, it did not require the county to “maintain” any specific records.

The circuit court agreed and found in the county’s favor.

It ruled, in part:

4. If a duty and liability is to be imposed upon the County to maintain Planning Department records with unerring accuracy, it should be imposed by a legislative body. A legislative body is the proper entity to determine whether [to spend] the County’s scarce resources on such a duty and is capable of providing additional economic resources which may be necessary;

5. The Planning Department owes no duty to keep its records accurate and complete for persons who seek information regarding the degree to which real property may be capable of subdivision.

The case was appealed to the Intermediate Court of Appeals, which affirmed the decision, and then on to the Supreme Court.

The Hawaii Supreme Court also affirmed the decision in the county’s favor.

From their opinion:

Molfino’s sole support for his claim that the County owed him a legal duty to maintain accurate Planning Department records was Rule 1-8, which requires only that “[a]ll public records shall be available for inspection by any person,” and contains no express duty to maintain these records in “accurate, relevant, timely, and complete” condition.

The bottom line for the court apparently was that the public records law, known as the Uniform Information Practices Act (or UIPA), requires disclosure of public records and prohibits disclosure of confidential personal records, but does not explicitly require government agencies to keep complete records. As a result, the government does not face any liability for damage caused by missing documents which may, as in this case, have caused monetary damages.

The court took this position even though the Hawaii County Planning Director had confirmed that their policy is to retain all records as public records essentially forever.

This is worrisome, because documents can go missing as a result of routine misfiling or temporary removal from a particular file during a specific internal use, but they can also go missing as a result of deliberate efforts to conceal information from the public. Without a duty to maintain those records, and some means of holding agency officials and employees accountable, the public can’t trust that requests for public records will be honestly complied with.

In the absence of a legal duty to maintain public records in good order, the public can’t trust that requests to inspect public records will provide a true look at the agency’s actions. It necessarily weakens the public’s right to know.

Perhaps there’s some separate legal angle, not mentioned in this opinion, that can provide accountability without liability for damages of the type that were at issue in this case. Perhaps others will know.

The Supreme Court seemed to recognize that the lack of a statute requiring records to be kept and maintained in good order may be problematic, but took the position that this requires a legislative remedy and not a judicially-imposed fix.

So it looks to me like another item to go onto a legislative wish-list of things that would strengthen the public’s right to know.

→ 5 CommentsTags: Court · Legislature · Planning · Sunshine