Civil No. 92-00263 DAE
MEMORANDUM IN SUPPORT OF PETITION and AFFIDAVIT OF JOSEPH N. A. RYAN, JR..
TABLE OF CONTENTS
I. THE CONSENT DECREE PARTIES HAVE 3 FAILED TO ABIDE WITH MANDATED TIME LIMITATIONS
II. FAILURE TO MAKE AVAILABLE PUBLIC 4 DOCUMENTS AS PER CONSENT DECREE and REFUSAL OF REQUESTS FOR PUBLIC INFORMATION
- III. MISLEADING ANNUAL REPORT: THE 4
- ANNUAL REPORT MISLEADS THE WATERSHED COMMUNITIES INTO BELIEVING THE DECREE’S MANDATED TECHNICAL REPORT HAD BEEN COMPLETED
- IV. ALIENATION OF COMMUNITY GROUPS 7
- AND COMMUNITY MEMBERS
- V. EXPENDITURE OF KBAC TIME, EFFORT, 8
- AND FUNDS ON ISSUES OUTSIDE THE SCOPE
- OF THE CONSENT DECREE.
VI. FAILURE OF KBAC TO APPOINT 9 REPLACEMENT MEMBERS WITHIN THE THIRTY DAY (30) TIME LIMITATIONS IMPOSED BY THE CONSENT DECREE
VII. FAILURE OF CONSENT DECREE PARTIES, 9 PLAINTIFFS AND DEFENDANTS, TO FILE NOTICE OF NONCOMPLIANCE OR APPLY TO THE COURT FOR STIPULATED AMENDMENTS TO THE CONSENT DECREE
VIII. APPEARANCE OF IMPROPRIETY 10
IX. KBAC MEMBERS HAVE ALLOWED THE 12 COUNCIL TO VIOLATE THE CONSENT DECREE RULE VII, C. BY AWARDING CONTRACTS OR PROVIDING FINANCIAL BENEFIT TO EMPLOYERS
SECTION II.
PETITIONERS REQUEST TO THE COURT 12 TO AMEND THE CONSENT DECREE
.I THE CONSENT DECREE PARTIES HAVE FAILED TO ABIDE WITH MANDATED TIME LIMITATIONS
The Consent Decree at Section VII, (page 31), mandated the creation of the Kailua Bay Advisory Council ("KBAC") and dictated the certain purposes of the KBAC. The decree provided that certain reports shall be completed within particular time limitations. The KBAC has failed to comply with the mandates of the Consent Decree.
1 The Consent Decree at Section VII, subsection L, Technical Program/Report on Water Quality Improvement states: "1. Within two (2) months after designation of the Nonprofit, the Council shall issue a request for proposals from one or more consultants to evaluate feasible programs to improve water quality... and to prepare a written report of its evaluations (the "Report"), (page 39). The Consent Decree further noted that "the technical program shall result in a report recommending measures to improve water quality." (Appendix 1).
2 The Consent Decree at VII, subsection L.4 (page 39) states: The Report shall be completed within eighteen months after the consultant(s) have been issued a notice to proceed with this project, and shall be submitted to the Council within seven (7) days after is has been completed. (Appendix 1)
3 A document labeled "Minutes, Kailua Bay Advisory Council, Kaneohe Community Center, 18 November 1996" and clearly stamped "Draft" and kept on file in the reference section of the Waimanalo Public Library in a binder labeled "Kailua Bay Advisory Council," states that "The phrase "to hold harmless" was pointed out to the council as the only modification when the contract was presented. . .." and a document attached to the minutes of 18 November 1996, entitled "Kailua Bay Advisory Council, Resolution by Council Members" and plainly marked "Draft," states: "In accordance with the consent decree (Civil No. 92-00263), the Kailua Bay Advisory Council (KBAC) designated an non-profit organization to administer the funds dispersed by the City and County of Honolulu. The organization chosen is the Center for Sustainable Future (CSF) 501© case number 955258003 and EIN 99-0322229" (errors in original). (Appendix 2)
4 Susan Miller was hired as a technical consultant to prepare a written report in early April of 1997. The KBAC "Annual Written Report, July 1996 through June 1997", in a section entitled "The Technical Program" states: "The Council, through the nonprofit administrator, has hired Susan Miller as a technical consultant to prepare a written report identifying 1) the nature and extent of water quality or watershed management problems within the watersheds, 2) any gaps in the existing state of knowledge and, 3) guiding the direction of remedial measure if such measures are deemed advisable by the Council. The final report has not been submitted." (Appendix 3)
5 The "Kailua Bay Advisory Council, Annual Written Report, July 1997 through June 1998, states, under the heading of "The Technical Program." "Early in 1997, the Council hired Susan Miller as a technical consultant to prepare a written report identifying 1) the nature and extent of water quality or watershed management problems within the watersheds, 2) any gaps in the existing state of knowledge and, 3) guiding the direction of remedial measure if such measures are deemed advisable by the Council. The report has been completed and is available at the Kailua, Kaneohe, and Waimanalo libraries." (Emphasis added). (Appendix 4)
6 On September 9, 1999, Eugene Dashiell submitted a 17-page memorandum to KBAC members S. Young and J. Nakamura, which included a "Subject: Proposal for continuation of contract to prepare Technical Report per Consent Decree, . . .." in which he states "I am concerned that the [technical program] and preparation of the Technical Report be done so ". . . in a manner completely independent from the parties." (Consent Decree VII Page 41)." (Appendix 5).
6 Furthermore, in an interview on February 13, 2000, Dr. Edward Laws, past member of the KBAC, stated: "As I understand it they are still waiting for the report from Eugene Dashiell - the so called ‘Technical Report.’" (Appendix 6)
II FAILURE TO MAKE AVAILABLE PUBLIC DOCUMENTS AS PER CONSENT DECREE and REFUSAL OF REQUESTS FOR PUBLIC INFORMATION
.
1 In April of 1999, Carroll Cox, president of EnviroWatch, Inc. initiated numerous requests for public disclosure of records related to program functions and selection process of contractors and sub-contractors hired by the KBAC. The KBAC and its administration failed to distribute or provide access to the requested information.
2 On December 28, 1999, attorney Lea Hong, an associate of Paul Achitoff at the time the Consent decree was crafted and now with Alston, Hunt, Floyd and Ing, indicated via letter, to Sarah Young, that Alston et. al. will represent KBAC "regarding its public disclosure policy." (Appendix 7).
3 On December 29, 1999, in a memorandum from: Lea Hong, Esq. to: KBAC Board, and Sarah Young, Ms. Hong states: "My recommendation is that the KBAC Board voluntarily adopt UIPA and apply it to Mr. Cox’s request and all future requests for access to records." (Appendix 7).
4 On January 6, 2000, KBAC Acting Chair, Toby Rushforth, in a letter to Waimanalo Citizens for a Healthy Future, Mr. Ryan and Mr. Andrews, states: "As you were advised at the Dec. 14, 1999 meeting, KBAC will indeed respond to any future inquiries raised by you, Mr. Carroll Cox, or EnviroWatch, Inc., your affiliate organization." (Appendix 8).
5 On January 8, 2000, Sarah Young, in an e-mail to all KBAC members (including Dr. Laws, who had submitted a resignation letter of January 7, 2000) tacitly admits that Paul Achitoff has advised KBAC to release information and that requests for information must be in writing. (Appendix 9).
6 On January 9, 2000, Carroll E. Cox, President of EnviroWatch, Inc., requested the resumes and, while citing the Consent Decree and its mandate that "[T]he council shall prepare written minutes of its meetings and written reports. . . and shall promptly provide copies of each such report to. . . any member of the public who requests a copy, at no charge (up to a total of 50 copies)." also requested the opportunity to view, at a mutually agreeable time and place, minutes and written reports of KBAC. (Appendix 10).
7 On January 20, 2000, KBAC, in a letter addressed to Mr. Carroll Cox, Mr. Joseph Ryan, Jr., Jim Andrews, and EnviroWatch, Inc., and signed by Judy Nakamura for Toby Rushforth, did release minimal information relating to members and certain minutes. Rushforth via Nakamura states on page two: ". . . that we are still in the process of obtaining a comprehensive legal review of the council’s status, information disclosure policy, and on grant application criteria." (Appendix 11).
III MISLEADING ANNUAL REPORT: THE ANNUAL REPORT MISLEADS THE WATERSHED COMMUNITIES INTO BELIEVING THE DECREE’S MANDATED TECHNICAL REPORT HAD BEEN COMPLETED
.
1 The Consent Decree at Section VII, subsection L, Technical program/Report on water Quality Improvement states: "1. Within two (2) months after designation of the Nonprofit, the Council shall issue a request for proposals from one or more consultants to evaluate feasible programs to improve water quality... and to prepare a written report of its evaluations (the "report") (Page 39). (Appendix 1)
2 The Consent Decree at Section VII, subsection L.4 (page 39 & 40): The Report shall be completed within eighteen months after the consultant(s) have been issued a notice to proceed with this project, and shall be submitted to the Council within seven (7) days after is has been completed. (Appendix 1)
3 The minutes of the September 23, 1997 meeting, under "OLD BUSINESS" states: "Mark (Heckman) and Ed (Laws) reviewed the report and concluded that it is a cross reference bibliography that could be used by the Volunteer Water Quality Monitoring Coordinator and the technical consultant, but it is not a full summary indicating areas that require additional work and of the state of knowledge on water quality issues that was desired." (Appendix 12).
4 The Semi-Annual Written Report, July through December 1997, states at: "The Technical Program:" "Early in 1997 the Council hired Susan Miller as a technical consultant to prepare a written report to 1) identify the nature and extent of water quality or watershed management problems within the windward watersheds, 2) identify any gaps in the existing state of knowledge and 3) identify the direction of remedial measures if such measures are deemed advisable by the Council. A completed report has not yet been submitted. However, an intermediate report is complete and will be made available. An additional consultant to complete the report may be hired." (Appendix 13).
5 The "Kailua Bay Advisory Council, Annual Written Report, July 1997 through June 1998, states, under the heading of "The Technical Program." "Early in 1997, the Council hired Susan Miller as a technical consultant to prepare a written report identifying 1) the nature and extent of water quality or watershed management problems within the watersheds, 2) any gaps in the existing state of knowledge and, 3) guiding the direction of remedial measure if such measures are deemed advisable by the Council. The report has been completed and is available at the Kailua, Kaneohe, and Waimanalo libraries." (Emphasis added). (Appendix 4)
7 Dr. Ed Laws, on page 2 of his February 13, 2000, interview, states: "The Technical Report has never been completed." Dr. Laws, on page 3 of the same interview states in response to the question: Was Susan hired to fulfill the technical report? "No. No she was not. Hers was simply a review of existing information. The technical consultant, as I recall, was to make some recommendations to KBAC. And KBAC wasn’t obligated to follow them. But Susan was not to make any recommendations. She was just to summarize the base of knowledge at that time."
On page 4 of the same interview, and after reading the "Kailua Bay Annual Report, July 1997 through June 1998," Dr. Laws states the Annual Report "seems to be misleading" and when asked the question: "When you say "seems misleading," what do you mean?" Dr. Laws responded
"It say what she was hired to do. Which includes guiding the direction of remedial measures if such measures are deemed advisable. And it says the report has been completed. Now, I would have took that to mean all of those elements were in the report. But I wouldn’t feel that Susan did an adequate job of reviewing the database. An she even acknowledged that she hadn’t done an adequate job."
On page 7 of the Dr. Laws interview, Dr. Laws states: "I saw an email message just about a week ago, that the report was due to come in any day and that is, presumably, the report the Council would use as the basis for moving into the Implementation Phase." (Appendix 6)
In his interview, continued on February 15, 2000, Dr. Laws states:
"She [Susan Miller] gave us a cross reference bibliography. But what we were really after. . . I mean she was supposed to make use of that information. But she was to give us a summary indicating areas that required additional work. And the idea was that, if we had hired a technical consultant at that point, with the idea that this person would make recommendations to us that are indicated in the consult decree for the technical program. You know, if there were gaps in the database, this person really couldn’t really make an informed judgement about what needed to be done. And, so the idea was to get Susan in there and for her to review the database and then summarize the state of knowledge in a, you know, few pages so that it would be clear what was known and what needed to be known, if there was anything that we didn’t already know. And the report that Susan actually gave us was an incomplete list of references basically. And she never got around to doing a decent summary. Interestingly, the best. . . During this time, I felt by far the best summary we got from anyone was from Nancy Glover. And it concerned the situation in Waimanalo. And we didn’t pay her a dime for that. She just gave it to us. But it was exactly the same thing that we wanted Susan to do. (Appendix 6).
8 On July 9, 1999, Eugene Dashiell, AICP, the person with whom KBAC contracted in March, 1998, to prepare the Technical Report provided a six page status report in which he states "one of the key products of that contract is a technical report which would be due at the end of the contract in September 1999" and "However, I have previously informed KBAC that I did not intend to meet this deadline or provide the technical report on the scheduled date because of delays which were outside my control." Dashiell further writes "... I have told KBAC that I believe the Technical Report is roughly one year behind schedule". (Page 2, para 2). (Appendix 14).
9 On January 31, 2000, in an e-mail sent to all KBAC members (including Dr. Ed Laws who resigned effective January 7, 2000), Eugene Dashiell states he is "still working on the Interim Tech Report." (Attachment 15).
1 The Consent Decree section VII, D, §§ 1 and 2 (page 33) states: "The goals of the council are: 1) to educate and involve the community in preserving and protecting Hawaii’s water and aquatic biota; and 2) to organize community members into Volunteer Water Quality Monitoring Groups. (Appendix 1).
2 The resignation letter of Dr. Ed Laws, sent to Mayor Jeremy Harris with copies to Paul Achitoff, Earthjustice Legal Defense Fund and Toby Rushforth, acting chair of KBAC, dated January 7, 2000, ". . . actions taken by KBAC have increasingly alienated local community groups." (Appendix 16).
3 Since at least October of 1999, Lisa Ferentinos had attempted to negotiate a grant regarding stream restorations with KBAC. Ferentinos, in an e-mail to KBAC Executive Director, S. Young, on January 7, 2000, states "The entire approval of the contract is not conducive to a cooperative relationship with a community," and at item 3, of the same correspondence speaks of "an outright insult to the community." (Appendix 17).
4 Dr. Laws (A), in his statement of February 15, 2000, stated, in response to questions (Q):
"Ok. You had mentioned before that a single member of the council was able basically derail council actions. People were sensitive to the feelings of others and did not want to upset anybody.
Right.
How does that play into Waimanalo and the interpersonal relationships within the Waimanalo community?
As I said, it was no secret that Chris Woolaway was not a big fan of Nancy Glover’s. And I certainly got the feeling that Chris would have a negative reaction to any project or proposal that involved Nancy. And I felt this influenced Chris’ thinking. And Chris was very vocal at council meetings. If she didn’t like something she wasn’t shy about saying that she didn’t like it. Even if she perceived that the rest of the council was in favor of it. And I think that she, almost single-handedly derailed the funding of Lisa Ferentinos proposal. And that proposal, there was no secret that Nancy worked with Lisa. And I couldn’t help but think that influenced Chris’ thinking.
Does Woolaway have this same type of chemical, loving relationship with other people?
To the best of my knowledge, I’ve never heard her talk, in that way, about anybody else, other than Nancy. She may have strong feelings about other people but the name of Nancy Glover really seems to set her off. And I never sat down with Chris and really tried to probe into this to find out what was behind it. . . ."
And further Dr. Laws, when asked "Do you find that as a professional attitude?" Responded clearly and succinctly "No I don’t." (Page 38) and that Executive Director Sarah Young’s "attitude or posture toward Lisa’s or Amy Lewison’s (phonetic) group was probably influenced a lot by interaction between Sarah and Chris Woolaway." (Page 39)
Dr. Laws states, at page 46 of his interview:
"I thought that one of the areas where KBAC could really help out a lot is working with community groups. Helping community groups. It seemed clear to me that there were community groups out there who were doing good work. That was water quality related. Watershed related. And I felt that was an obvious place for KBAC to spend some money that would do some good. And instead of working with these groups, they were alienating them. And, so, I mean they were going in exactly the wrong direction. And I felt that the approach that Sarah took to interacting and dealing with these groups was just inappropriate.. . ." (Appendix 6).
- V. EXPENDITURE OF KBAC TIME, EFFORT,
- AND FUNDS ON ISSUES OUTSIDE THE SCOPE
- OF THE CONSENT DECREE.
After the failure of Susan Miller to prepare a Technical Program Report as contracted. Eugene Dashiell proposal to complete the "Report" was accepted. Dashiell on page 8 of his written report to the council, on September 9, 1999, regarding status of programs states he was actively participating in proposal writing for potential grantees, i.e.: "16. Worked with Ahupaa (sic) Action Alliance to develop their proposal to KBAC; 17. Coordinating with legislators regarding Plastics Bills for forthcoming session; "26. Worked with Le Jardin Academy to improve their soil erosion, control silt curtain coverage of the construction along the upslope adjacent to Quarry Road to reduce the discharge of silt to Kawainui Marsh;" and further "27. Coordination with CSF’s Heeia Initiative." (Appendix 5).
VI. FAILURE OF KBAC TO APPOINT REPLACEMENT MEMBERS WITHIN THE THIRTY DAY (30) TIME LIMITATIONS IMPOSED BY THE CONSENT DECREE
KBAC council members Madlener and Laws have resigned. They were not replaced within the thirty day period as mandated by the Consent Decree. The KBAC continued to conduct business by holding "Executive Sessions" for purposes of guiding Council activities and development of policies and guidelines without the eight members required by the Consent Decree in at least two meeting held during the month on February, 2000.
VII. FAILURE OF CONSENT DECREE PARTIES, PLAINTIFFS AND DEFENDANTS, TO FILE NOTICE OF NONCOMPLIANCE OR APPLY TO THE COURT FOR STIPULATED AMENDMENTS TO THE CONSENT DECREE
There are no publically available records of any enforcement action by the parties to the Consent Decree. The parties responsible for crafting the decree have taken a "hands off" approach. As stated by Dr. Laws, in response to the following question:
In the consent decree, there is a section entitled enforcement and refers to notices and noncompliance traveling back and forth from council and city and plaintiffs and things. Was there discussion, either by the plaintiffs reps or defendants reps, that’s the environmental and the city, as to noncompliance or noncompliance notices?
Non compliance with the consent decree?
Yes.
Yeah. I think there was. At least early on. Because people immediately began to realize that we weren’t following the timeline that had been set out in the consent decree. And I suspect but I can’t remember for sure, I suspect that some calls were made to people like Paul Achitoff. Saying we’re falling behind. What do we do? And. . . However, the attitude of Paul and as far as I could tell anyone, either the city or the plaintiffs, would be to take a hands off approach. I think they were concerned about being accused of meddling. Uh. . . You know. Either side. Either the city or the plaintiffs. They wanted KBAC to be free to operate on their own. And to avoid any suggestion that they were trying to manipulate KBAC." (Appendix6).
Further Plaintiffs’ attorney, Paul Achitoff, in a letter to petitioner Carroll Cox, January 3, 2000, related: "On a personal level, I happen to share at least some of your frustration regarding the pace at which KBAC is moving to implement the mandates of the Consent Decree. I have expressed those concerns to several KBAC members for some time." Earthjustice Legal Defense Fund and Mr. Achitoff further distance themselves from KBAC when Mr. Achitoff states:
"Thank you for your December 30, 1999 letter. While I appreciate your concerns about the extent to which the Kailua Bay Advisory Council is complying with the Consent Decree, I am not in a position to respond to the questions in your letter. Neither Earthjustice Legal Defense Fund nor I have any official relationship with KBAC. Earthjustice represented the plaintiffs in the lawsuit against the City and County of Honolulu, the settlement of which gave rise to KBAC, and as the attorney for plaintiffs I had a substantial role in drafting the Consent Decree. Earthjustice does not represent KBAC, however; KBAC is an entity which obviously is not the same as, or a successor to, the plaintiffs, whose on1y role in regards to KBAC is to appoint half of the Council's membership I do not have control over any records or information relating to KBAC, and my access to such material is no greater than your own -- like you, I am merely a member of the interested public. I frankly do not know the answers to the questions in your letter." (Appendix 18).
The Petitioners believe that Mr. Achitoff brought the suit, on behalf of others, from which the Consent Decree was derived. Mr. Achitoff is also an officer of this Honorable Court and this Court appears to have retained jurisdiction in the settlement by Consent Decree. As such Mr. Achitoff has a duty to the Court to inform the Court of the same "concerns" he expressed to "several KBAC members." Mr. Achitoff, in partnership that can be likened to a marriage with the City and County, by license of this Honorable Court, produced an offspring named KBAC. Mr. Achitoff has failed in his duties as a parent in providing guidance and protection by failing to correct the "concerns" and "frustrations" he expressed while profiting immensely from the lawsuit.
VIII. APPEARANCE OF IMPROPRIETY
The Defendant has created, and the Plaintiff has allowed without comment or appeal, an appearance of impropriety in the following areas:
1. The Consent Decree, on its face, indicates the volunteer status of the Council members by stating the ". . . members of the Kailua Bay Advisory Council ("the Council), who will serve as volunteers." Section VII, A. (page31). The decree then defines the Council as being "comprised of two representatives from each of the following fours subgroups: community groups, local organizations, the scientific community, and government agencies," and further mandates that "Plaintiffs and the City shall each be entitled to appoint one member of each of the four subgroups." Section VII, B. (page 32). The City, by and through the appointment of council member Christine Woolaway, has violated the literal wording of the decree. The evidence indicates that Ms. Woolaway, as part of her job description as a "Junior Extension Agent" of Sea Grant Extension Service is a full time employee of the scientific community, specifically the School of Ocean and Earth Science and Technology (SOEST) the Research Corporation of the University of Hawaii (RCUH) and the University of Hawaii. (Appendix 19). Woolaway "[s]erves on the Kailua Bay Advisory Council, as requested by the City and County of Honolulu" (Appendix 20) under the community group of "Waimanalo Resident." In addition, Dr. Laws indicates that Woolaway has used her position to veto all proposals made to the Council from community entities while approving proposals that directly benefit her employers and the University of Hawaii system. (Appendix 6) The apparent fraud of Woolaways’ representation on the Council as the community group "Waimanalo resident" was never addressed by means of a notice of noncompliance or stipulated agreement to the Court or any effort to amend the Consent Decree as is provided for in the Consent Decree.
2 The City also influenced the actions of the council by creating a reliance and special dependance on Alex Ho, a City government employee. Mr. Ho was respected by the Council for his ‘insider information’ (Appendix 6, page 12) which he provided to the Council as one of the people that negotiated the Consent Decree. The Council relied on Alex Ho for interpretations of the Consent Decree. Mr. Ho failed to notify the Council 1) that requests for proposals were to be the responsibility of the nonprofit hired by the Council to administer its affairs, thereby creating the initial failure of the Council to issue the Requests for Proposals for the Technical Program Report within the timeline agreed to in the Consent Decree, and 2) never informed the Council that the failure of the Council to complete the Technical Program Report could result in the loss of One Million Dollars in additional optional funds. Again no notice of noncompliance was issued by the defendant for the failure of the Council to comply with the decree.
The appointment of Woolaway, the actions of Woolaway and Ho, whether intentional or unintentional, whether acting alone or acting in concert, have create the appearance of impropriety and bring into question the integrity of both the government and the justice system.
3 The appearance of impropriety is further supported by the selection of the Center for a Sustainable Future (CSF) as the nonprofit chosen to administer KBAC funds. The Dean of the School of Ocean and Earth Science and Technology (SOEST) is Dr. Barry Raleigh. Dr. Raleigh is also the founder of CSF. CSF is housed and operated on University of Hawaii property under the control and administration of SOEST. Dean Raleigh has the supervisory capacity of a direct employer over Council members Christine Woolaway - Sea Grant Extension Service, Dr. Ed Laws - Department of Oceanography, Mark Heckman - Hawaii Institute of Marine Biology, (Appendix 21) and through the University of Hawaii is related to KBAC financial beneficiaries Dr. Maqsudul Alam - Department of Microbiology and Dr. Dave Krupp - Marine Options Program, Hawaii Institute of Marine Biology (HIMB). The appearance of impropriety is further enhanced by the knowledge that Christine Woolaway is listed as a community group representative, i.e., "Waimanalo Resident" and, as a paid SOEST representative, "Serves on the Kailua Bay Advisory Council, as requested by the City and County of Honolulu." (Appendix 19 and 28). The refusal of the Defendant City to provide access to relevant information regarding KBAC lends more support to the appearance of impropriety with the realization that the Mayor of the City and County of Honolulu is himself a Marine Biologist, which is a recognized discipline within the School of Ocean and Earth Science and Technology (SOEST).
IX. KBAC MEMBERS HAVE ALLOWED THECOUNCIL TO VIOLATE THE CONSENT DECREE RULE VII, C. BY AWARDING CONTRACTS OR PROVIDING FINANCIAL BENEFIT TO EMPLOYERS
The minutes of the KBAC meeting of November 10, 1998, indicate that Dr. Dave Krupp, HIMB officer and Windward Community College instructor, negotiated a Memorandum of Understanding with KBAC for the purchase, installation and maintenance of a computer system at the Windward Community College in excess of $20,000.00. (Appendix 22).
On June 29, 1999, Mr. Edward Laws, Chairperson, Kailua Bay Advisory Council, received a letter of acknowledgment for the receipt of check number 270, in the amount of $65,083.00, for a research project "under the direction of Dr. Maqsudul Alam, principal investigator of our Microbiology Department," from Paul Kakugawa, Administrative Officer, University of Hawaii, Office of Research Services. (Appendix 23).
SECTION II.
PETITIONERS REQUEST TO THE COURT TO AMEND THE CONSENT DECREE
1 The Petitioners and Third-Party Beneficiaries of Consent Degree, Civil No. 92-00263 DAE, hereby respectfully propose the Consent Decree be amended to better satisfy the requirements of being (1) fair, adequate and reasonable; (2) consistent with applicable laws; and (3) protective of the public interest.
2 The petitioners propose that KBAC be disbanded and all funds, physical property, and other assets be distributed to community watershed councils whose documents of incorporation closely resemble the organization and goals of the Environmental Protection Agencies guideline on Community Based Watershed Management. These watershed councils shall represent a commitment to EPA guidelines and principles for watershed management, analysis, restoration, and implementation.
3 The Petitioners request the KBAC funds, interest accrued, penalties assessed, and any other assets of KBAC, tangible and intangible, physical or intellectual, be deposited to EnviroWatch, Inc., a valid nonprofit organization. These funds and assets shall be disbursed without administrative fees, costs, or other expenses, save expenses described in the paragraph 4 of this section, within two years of the effective date of any amendment to the Consent Decree.
4 Valid expenses, include, but are not limited to: the foreseen expenses of public notice of the availability of funds for local watershed councils, defense of litigation, duplication, mailing, and tax auditing; and unforeseeable expenses as they occur. The intent to the Petitioners is not to profit, in any manner, from the transfer of assets to the local community group or groups and that the basic desire of the Petitioners is that community watershed participants utilize the assets for water quality improvement.
5 This emphasis gives those people who depend on the aquatic resources for their health, livelihood, or quality of life a meaningful role in the management of the resources. Through such involvement the watershed approach can build a sense of community, reduce conflicts, increase commitment to the actions necessary to meet societal goals, and, ultimately, improve the likelihood of sustaining long term environmental improvements for Waimanalo and is in the Public Interest.
6 Further, the Consent Decree did not and does not diminish the duty of the State and City and County of Honolulu to prevent and eliminate water pollution as mandated by the Clean Water Act. It is the desire of the Petitioners that each of the three watershed communities; Kaneohe, Kailua, and Waimanalo, have equal access to the funds and benefits provided by the Consent Decree because each community has its’ own particular water pollution problems and each community possesses the primary interest in protecting the quality and purity of the water and the watershed.
Dated this _______ day of February, 2000. Honolulu, Hawaii
___________________________________
James R. Andrews
___________________________________
Carroll E. Cox
__________________________________
Joseph N. A. Ryan,