On Feb. 1, 2000, David Arakawa, Corporation Counsel for the City and County of Honolulu, requested through a letter, to the Acting Chair, Mr. Toby Rushforth a meeting to discuss the concerns related to KBAC operations. The concerns are:
· WHAT IS KBAC, legally, and what are its liabilities as an enterprise? What statutes apply?
· What are liabilities of KBAC Council members and contractors as they pursue KBAC business?
KBAC is also ready to answer inquiries by the framers of Consent Decree on what KBAC is doing to meet its responsibilities under the Consent Decree. Councilmember Holmes chaired the meeting.
Dr. Kenneth Spraque, Director for Department of Environmental Services, C&C Honolulu
Ms. Cheryl Okuma-Sepe, First Deputy Corporation Counsel
Mr. Paul Achitoff, Earth Justice Legal Defense Fund
Mr. Toby Rushforth (Acting Chair), Mr. Mark Heckman, Mr. Jefferey Harris, Ms. Christine Woolaway, Ms. Kimberly Lowe, Mr. Alex Ho.
Mr. William Wynhoff, and Mr. Bruce Hieneman
Kailua Bay Advisory Council (KBAC) consists of eight people appointed to carry out the Consent Decree (CD). This involves proper disbursement of several million dollars. The purposes of the Council (see Section VII A of the Consent Decree) are:
· To study the non-point sources of pollution in the Kailua/Kaneohe/Waimanalo watershed areas, and to the extent deemed appropriate by the Advisory Council, Point sources;
· To determine effective measures to mitigate such pollution to the maximum extent practical;
· To oversee the implementation of measures to mitigate such pollution as may be adopted by decision of the Council pursuant to this Consent Decree; and
· To oversee the volunteer water quality monitoring project to be implemented pursuant to this Consent Decree.
The Goals of the Council are:
· To educate and involve the community in preserving and protecting Hawaii’s waters and aquatic biota
· To organize community members into volunteer water quality monitoring groups to collect water quality data to be used in identifying potential pollution of Kawainui Canal, Kaelepulu Stream, the Kailua, Kaneohe, and Waimanalo Watershed areas and the shoreline and near shore areas of Kailua, Kaneohe, and Waimanalo Bays.
· To hold training workshops and community meetings, to be held at a frequency determined by the Council, for the purpose of educating the public, soliciting input from the community on the problems considered to be important, and to afford governmental resource agencies the opportunity to understand the community’s perspective and needs.
· To encourage consensus in the selection of water pollution mitigation measures.
· To provide an annual written report to all parties, informing the parties of the work done by the Council through its three programs in the previous year.
· To identify and prioritize local water quality, stream and coastal environmental issues within the framework of this Consent Decree.
The consensus of the eight board members or the super majority voting decides how to best achieve the stated purposes and goals, and to carry out the Consent Decree requirements. KBAC has control over how the settlement money is to be disbursed.
KBAC consists of eight members. They are representatives from the community. On the Community side, once appointed, they represent only themselves. The subgroups, where KBAC members come from, include community groups, local organizations, the scientific community, and government agencies.
KBAC is the product of a court order and it is responsible to fulfill the requirements of the Consent Decree. It is NOT a government agency. The City made the check out to KBAC and does not hold special sessions with the four members appointed by the City to assert its positions on KBAC’s decision making process. CSF Inc. does not control KBAC’s assets, the control of KBAC’s money is completely up to KBAC.
Since its establishment, KBAC has been confronted by issues such as the legal standing of KBAC as an enterprise, its liabilities, required public disclosure policy, and contracting processes and procedures.
Over the years, KBAC has approached the framers for legal assistance on issues such as those above, however, the advice given was ad hoc, informal and unoffical. The framers have repeatedly made it very clear that they are NOT KBAC attorneys, and they do NOT represent KBAC.
As of Jan. 2000, KBAC reached a consensus to seek legal expertise in reviewing KBAC’s legal status, recommending measures to improve KBAC’s operations; minimizing the risks to liabilities; and establishing a public disclosure policy that would best serve the purposes and goals of the Consent Decree. KBAC clarified that these legal experts were not engaged to interpret the Consent Decree.
The framers clarified that they have no standing or intention to serve as the Board of Directors above KBAC, but offerred to provide some support to KBAC if requested.
The legal framers explained that their original Intent of the CD was for KBAC to identify several big projects, disburse the money to these big projects and be done with its mission. KBAC members clarified that this Intent of the CD is certainly not clearly expressed in the CD and does not neccesarily reflect the original views of the litigants who brought the law suit. Additionally, through the years, KBAC members have learned that nonpoint source pollution problem can not be well addressed through a couple of short-term capital improvement projects. KBAC primary concern has been to adequately address non-point source problems in a fiscally responsible manner.
KBAC has followed the decision making framework outlined in the CD. The consensus or super majority (at least 6 out of 8 members) voting of the KBAC Council has brought KBAC to where it is today. Both sides of the lawsuit, including the framers, have been informed of its progress and its challenges along the process. Members representing both sides have worked side-by-side diligently through the years.
KBAC consists of members from four diverse groups. The existing super majority (consensus) voting structure has presented challenges for the board. But in all cases, KBAC decisions are driven by the consensus for what is best for the Windward Watershed under the CD, proper community involvement, and also concerns about KBAC’s legal standing and liability issues. KBAC members have exhibited great commitment and courage as they have pursued the goals and objectives of the Consent Decree. The CD notes that the Board need meet only quarterly. In actuality, the Board has met monthly or bi-monthly in an effort to understand the issues and move forward responsibly.
Suggestion was made that the complexity of KBAC operations was was an internal decision. KBAC clarified that the KBAC membership establishment, the goals of the CD, members’ deep connections with the community and insights on watershed issues, and the technical program recommendations (see next paragraph) have all contributed to the shift from seeking three or four big projects to seeking broad-based community support for longer-term community commitment. KBAC members have been anxious to finalize the strategic planning process and finalize decisions for moving ahead. However, with the delays in completing the technical report, past absence of an overall strategy, well-documented business and decision making processes, and a strong contract package, it was very difficult to disburse the money in a responsible way.
The Technical Program Coordinator reported that his Interim Technical Report will be available for KBAC members by Feb. 24, 2000. KBAC’s early contract processes and its newsletter reflected that stakeholder involvement is required to effectively address non-point source water quality problems. The framers indicated that the slip in timeline is not a big concern for them, they just want to see that things are getting done.
The City’s contract package as well as CSF’s contract package have not been adequate for KBAC’s community watershed management work. A more friendly, but effective, boiler plate contract package, tailored for community projects, with accountability built into the contracting process is required. It was noted that even if KBAC adopts the City’s contracting processes, the decision-making authority remains vested in KBAC.
Since last summer, getting three pilot community projects started became a priority. KBAC decided to initiate a pilot project program with three community projects in order to gain experience and learn lessons in building the process.
Some members felt that an RFP should be in place before awarding big contracts; while others felt about it was important to get more of the CD funds disbursed as soon as practicable. So the consensus was to start these three pilot projects and ensure contracts to have good measures of success and accountability features. However, it turned out that getting initial community group agreement on contract language was quite challenging. We did not reach consensus with two of the groups prior to the business review, and though a contract was signed with a third group, they wanted to hold-off until after KBAC finishes its business review process.
Nevertheless, through the mini-grants projects, and the interactions with these three groups and others, KBAC has learned great lessons for developing its contracting process.
The framers did not, nor did the City, intend to tell KBAC how to conduct its business. They offered to help KBAC progress toward succeessful achievement of Consent Decree goals and objectives. All of the parties want the KBAC effort to suceed.
KBAC decides, through consensus or majority (6 out of 8) voting, on how to best fulfill the requirements of the Consent Decree and generally conduct KBAC business.
KBAC will focus on establishing its business processes, public disclosure policies and contracting processes. These are all part of KBAC’s strategic planning and business process review. KBAC will keep open its dialogue with the framers of the CD and others as its business activities evolve and milestones are met.