The wink-nod politics of Hawaii's State Legislature is not honest government of, by, and for the people of Hawaii
SB795 is a thinly veiled pretense to hand public recreational harbors over to big-money private interests
At first glance this looks like a normal committee meeting hearing in our Hawaii state legislature. But watch carefully. What you're witnessing is a committee chairperson manipulating the committee hearing process to attain his desired outcome for a bill.
(Editor's note: in the interest of fairness, we have reached out to Representative Tarnas for an explanation as to why his hearing was allowed to proceed as if it were pre-scripted. We have updated this article with his response and our observations.)
Representative Tarnas replies:
Aloha Katherine,
Thanks for your note. I read your article and welcome your invitation to provide you with a response.
I am grateful for the opportunity to serve as Chair of the House Committee on Water and Land. While conducting our Committee hearings, I make sure to provide all the written testimony to Committee members in time so they can review it carefully before the hearing. I also make sure to allow anyone wishing to provide oral testimony the opportunity to speak at the hearing. For those who choose to submit only written testimony, I read their names in the hearing so everyone knows who submitted testimony and if it was in opposition or in support. I always provide the opportunity for Committee members to ask questions of any testifier. In the hearing on SB 795, one of the testifiers opposed to the bill was unable to provide oral testimony as originally planned. So, I made a specific point to bring up his concerns and ask DOBOR to respond to these concerns. The hearing was conducted in a fair and transparent manner and not manipulated in any way to hide anything or misguide anyone.
After talking with other legislators, it was clear that there is broad support for allowing DOBOR to set mooring fees based on appraisals, rather than having the fees set in statute. The Senate passed SB 795 unanimously with 25 Senators voting in favor of the measure and two of those Senators voting in support with reservations. The House members I spoke with were all in support of the measure. That's why I recommended approval of SB 795.
I fully understand that there are boaters who opposed SB 795 and had urged me to defer the measure. I've also heard from some boaters saying they are willing to pay higher mooring fees if they get better services and the facilities are better maintained. It was clear to me that not all boaters share the same opinion on this matter. I can appreciate that you opposed SB 795 and wanted me to defer the bill. Even though your article criticizes me for recommending approval of SB 795, I am being respectful and transparent with you by responding to your article to let you know my reasons for recommending approval of the bill and what my strategy is for dealing with DOBOR.
If SB 795 is approved by the full legislature, I firmly believe that the administrative process of reviewing and approving any new fee schedule must be done so that the public can review the proposal, and provide written and oral comments to question the appraisals and to question the proposed fee schedule. It is essential that the public have the opportunity to give input on the appraisals and the proposed fee schedule.
I agree that DOBOR has not been doing a good job managing our state small boat harbors and launch ramps. As a legislator, I will be vigilant about holding them accountable for their actions or inactions. I am also skeptical about their strategic plan and their intention to have all the harbors run by private management entities. There may be a role for public-private partnerships to run some harbors. But, DOBOR needs to do a better job fulfilling their mission and not just give up. I will work to learn more about their strategic plan during the interim and to figure out what is the best way for the legislature to guide DLNR DOBOR to revise their strategic plan into something that boaters in our state can support.
In doing this legislative work, it is important for me to hear from boaters and users of boating facilities. Thanks for contacting me and sharing with me your opinions.
Mahalo, David
Representative David A. Tarnas
District 7 – North Kohala, South Kohala, North Kona
Hawaii State Capitol
415 S. Beretania Street, Room 316
Honolulu, HI 96813
808-586-8510
Hawaii Ocean News staff responds (HON)
Dear Representative Tarnas,
Thank you for taking a moment to respond to our March 23, 2021 post.
In the interest of clarification, we'd like to reprint key comments from your message and provide our observations.
Rep. Tarnas: "While conducting our Committee hearings, I make sure to provide all the written testimony to Committee members in time so they can review it carefully before the hearing. I also make sure to allow anyone wishing to provide oral testimony the opportunity to speak at the hearing."
HON response: There was much to suggest, during our analysis of the replay of your WAL hearing, that you and your committee members were not even remotely prepared to hear this bill. From the video, please see below timestamps: 01:46, 06:21, 06:55, 07:04, 08:13, 08:53, 09:56, 10:24, 11:50, 12:03, 12:58
Much of the legislation that comes before you at the legislature comes with deep history and a sometimes complex array of supporting information. A committee member could not possibly understand the full depth and breath of what they are about to vote on if they haven't taken the time to study the facts. Attempting to review the information associated with SB795 right before a hearing is like paddling out at Waimea Bay right after your first surfing lesson. A really bad idea, since in the latter instance you'll probably get killed, and in the former you'll most likely cast an uninformed vote that will end up needlessly hurting a lot of innocent people.
You're doing your constituents and the people of Hawaii a disservice by not requiring your committee to study and understand the facts associated with any proposed bill. Most legislators have become habituated to cursory purview, and because no one objects, this kind of shoddy preparation has become normalized in our legislature. As we saw at this hearing, most of your committee members appeared like deer in headlights because of their almost total ignorance of the subject matter (See the following timestamps in the clip: 01:46, 06:21, 06:55, 07:04, 08:13, 08:53, 09:56, 10:24, 11:50, 12:03, 12:58)
Rep. Tarnas: "For those who choose to submit only written testimony, I read their names in the hearing so everyone knows who submitted testimony and if it was in opposition or in support."
HON response: So, you read their names? What about their opposition statements, some of which are highly credible, articulate, detailed and fact-filled input that would properly inform committee members? Why is that being deliberately ignored? Maybe because it's opposition testimony and a "no" vote is not where you were planning to go? (01:46)
Rep. Tarnas: "In the hearing on SB 795, one of the testifiers opposed to the bill was unable to provide oral testimony as originally planned. So, I made a specific point to bring up his concerns and ask DOBOR to respond to these concerns."
HON response: Please have a look at 08:40 and 10:25 in the video. During the analysis of the footage, most of our staff referred to this exchange as the poster child for "classic manipulation". So the game here is to mention the unavoidable and well-detailed hot-spots that appeared in at least two of the well-written testimonies, and then, skirting a further discussion of these latter, you ask your "expert" testifier, Ed Underwood, a person who has lied to you at previous hearings and who is a key sponsor of this bill, tag-and-go questions that do nothing to address the issues you'd just mentioned a few seconds before. People are not stupid, Rep. Tarnas . . . this was lost on no one.
Rep. Tarnas: "I can appreciate that you opposed SB 795 and wanted me to defer the bill."
HON response: Please have a look at our testimony again. We'd never asked you to "defer" the bill. What we were hoping for -- foolishly, in retrospect -- was that you would simply do the right thing, look at the facts, be honest, and out the bill for what it is: just another misguided attempt by Underwood's DoBOR and Case's DLNR to prepare the public recreational boat harbor system for privatization. But, you couldn't do that because, we suspect, you already had an agenda, and the fate of the bill had been determined long before your WAL hearing. (12:58)
Rep. Tarnas: "If SB 795 is approved by the full legislature, I firmly believe that the administrative process of reviewing and approving any new fee schedule must be done so that the public can review the proposal, and provide written and oral comments to question the appraisals and to question the proposed fee schedule."
HON response: Historically, Ed Underwood and Suzanne Case's "administrative process" has been designed to further their own agenda, without boater input. The two administrative heads, sadly, choose to remain ignorant about the very facilities they have so poorly administered over the past years. Neither one of them even bothers to tour Hawaii's largest public recreational small boat harbor. We've asked at least a dozen longtime boaters at the Ala Wai Public Small Boat Harbor (AWSBH) in Waikiki if, over the period of the last 10 years, they'd ever seen Case or Underwood do an inspection tour of that harbor. The answer was a resounding and unanimous "no." Trying to run Hawaii's public recreational boat harbor system from behind closed doors is neither honest nor efficient administration.
Rep. Tarnas: "It is essential that the public have the opportunity to give input on the appraisals and the proposed fee schedule."
HON response: The boating community has, over the years, desperately tried to have the floor on their behalf during administrative rule changes. Have a look at this article. On one occasion, the public submitted hundreds upon hundreds of instances of written opposition, much of it containing valuable input, and more than 20 full hours of oral testimony opposing one of Suzanne Case's poorly-informed rules package modifications (some of which contained legally contentious mandate). When we researched this, we found that neither Underwood nor Case had listened to even a moment of the oral testimony, and had not read a word of the written testimony. At the final BLNR hearing set to vote on this measure, there was the unmistakable feeling that the vote had been determined long before the meeting even began, and there was little question that much of the discussion about this agenda item took place out of the sunshine, in violation of the law.
Rep. Tarnas: "The hearing was conducted in a fair and transparent manner and not manipulated in any way to hide anything or misguide anyone."
HON response: Regarding your claim for transparency, reviewing all of this, we would respectfully submit that within our Hawaii State Legislature legislators have normalized a culture of corruption, and outliers won't be tolerated. After reviewing this video, we find nothing to refute this, and we find that while you've artfully created the perception of "transparency", your true agenda was crystal clear . . . the manipulation for the outcome of SB795. You're not alone in this. Our legislature culture demands compliance with this wink-nod under-the-table and out-of-the-sunshine morality. (00.22)
Rep. Tarnas: "After talking with other legislators, it was clear that there is broad support for allowing DOBOR to set mooring fees based on appraisals, rather than having the fees set in statute. The Senate passed SB 795 unanimously with 25 Senators voting in favor of the measure and two of those Senators voting in support with reservations. The House members I spoke with were all in support of the measure. That's why I recommended approval of SB 795."
HON response: The people of Hawaii would like to believe that the individuals who they elect to office have minds of their own -- can think for themselves -- can make their own informed assessments, and will vote their true conscience, much like Patsy Mink did during her tenure in the legislature. What you are telling me here is that you, in fact, do not do your research and do not think for yourself. The other senators that you mention were, clearly, poorly informed about the baseline data surrounding SB795. The primary reason why it made it through the Senate was because almost none of the affected demographic was aware of the legislation and there was little in the way of constructive, detailed opposition. The public didn't find out about this bill until too late for Senate hearings.
Why is it that the public has to play this game of cat-and-mouse in order to unearth legislation that, if passed, could adversely affect their quality of life. This is shameful and you guys know you're doing this on purpose so as to limit public participation (05:48 . . . really?). At your WAL hearing we once again see a disturbing example of how the DLNR/DoBOR representatives lead legislators around by the nose with half-truths, misrepresentations, and, in some cases, downright lying.
Rep. Tarnas: "I agree that DOBOR has not been doing a good job managing our state small boat harbors and launch ramps. As a legislator, I will be vigilant about holding them accountable for their actions or inactions. I am also skeptical about their strategic plan and their intention to have all the harbors run by private management entities."
HON response: Rep. Tarnas, this issue has been around for at least a decade. That you "agree" that there's been a problem is vacuous nonsense. What have you done about it? The answer is nothing. You've in fact allowed DoBOR Administrator Ed Underwood and DLNR Chair, Suzanne Case to lie to you, on the record . . . and you'd blessed it with silence. This is not why people elect legislators. The people of Hawaii want honest government. Right now, we're not even close.
Rep. Tarnas: "There may be a role for public-private partnerships to run some harbors. But, DOBOR needs to do a better job fulfilling their mission and not just give up. I will work to learn more about their strategic plan during the interim and to figure out what is the best way for the legislature to guide DLNR DOBOR to revise their strategic plan into something that boaters in our state can support."
HON response: This comment is nothing short of frightening. The P3 metric, in particular, is so onerous that the public has had to fight this, tooth-and-nail, for years. Please try to focus here, Rep. Tarnas: THE PEOPLE OF HAWAII DO NOT WANT THEIR PUBLIC ASSETS HANDED OVER TO PRIVATE, FOR-PROFIT ENTITIES. If you need someone to help you with the semantics in that last sentence, we'll be happy to recommend an English coach.
To be quite frank with you, Rep. Tarnas, the whole hearing appeared to be nothing short of textbook manipulation. To wit:
At 0:22 in the video you extra-pronounce, for obvious emphasis, "fair market value", immediately trying to anoint this legislation with moral high ground, as if this were some carefully derived metric that, in itself, should be rational enough for the passing this legislation. A mere 22 seconds in and you're clearly signaling your voting preference and your agenda to other committee members. Had you truly researched the topic, had you been unbiased in wanting to drill down to the truth -- the core substance -- of this bill, you would have qualified "fair market value" so that everyone knew that its derivation was highly suspect to the point where it was facing a pending legal challenge in circuit court.
At 1:46 in the video you read off the names of 12 individuals who submitted written testimony in opposition. There were actually 18 individuals who submitted written testimony in opposition. Some of that testimony was intelligent, constructive, credible input. During your reading, you failed to provide even the slightest hint of the content of their informed messages, and, as we discover later on in the hearing, your committee members apparently were too distracted to take the time to properly read and research this critically important input.
At 2:43 testifier James Callahan correctly and simply points out one of the glaring flaws in Underwood's newest Principal Habitation permit fee structure. Mr. Callahan was pointing out that the idea is overly simplistic, illogical and incredibly harmful to families who have chosen their vessels as principal habitation. Think for a minute, Rep. Tarnas, suppose the bank sent you a notice in the mail informing you of a sudden doubling of your mortgage rate because "we're experiencing funding shortfalls due to the pandemic". What would your reaction be? You can be very sure that doubling anyone's rent would drive some families from their homes and into the street. It currently costs the State of Hawaii around $3,000 per month per person to accommodate the homeless. Where is the fiscal gain in this legislation? And, as far as the debits this legislation creates, the latter is just the beginning, as you will see.
At 5:48 you remind us, as if boilerplate, that the "participation of the public is very important". While we get the uncomfortable feeling here that you weren't actually serious, we discover later on in the hearing that, in fact, you weren't, and neither were any of the other committee members, most of whom hid behind muted mikes and cams leading onlookers to believe they might not even have been present.
At 6:21 Underwood responds to Rep. Kobayashi's question about the overly simplistic the proposed new boat harbor fee structure. To any informed observed, most of what Underwood said was pure gibberish. First he tells Rep. Kobayashi that the mooring fees and principal habitation fees are "not combined" (6:21), and then at 6:42 he tells Rep. Kobayashi that they "are combined." Question, Rep. Tarnas: Underwood has lied to you in previous hearings, why does he still have credibility with our legislators? Do we reward lying in this legislature?
At 6:55 Underwood tries to convince your committee that his DoBOR and Suzanne Case's DLNR are victims of statute and that the fee structure in the public harbors has not "kept up with inflation". What he neglects to tell you is that the singular outstanding reason why the fees haven't "kept up with inflation" is because his DoBOR and Case's DLNR have been in violation of HRS 200-10 wherein it states that rates were to have been increased every year according to the cost of living (CoLA) allowance metric. If you and your committee members would have done your research, you would have known that. But you obviously didn't, and each of you was ignorant of this failure on their part.
At 7:04 Underwood tries to convince committee members that his attempt to have "fair market value" set by appraisal was unsuccessful. Nice try, but, in fact, the entire basis of this legislation is rooted in the "fair market value" metric, as you so enthusiastically pointed out at 00:22. Further, the so-called "fair market value" was indeed inspired by an appraisal by CBRE. The appraiser, CBRE, has absolutely zero experience with making the apples-and-oranges comparison between public recreational small boat harbor rates that charge for the rental of a rectangular 2-dimensional space, length by width, and the rental rates charged for full blown private facilities with cubic footage owned by private parties. So clueless was CBRE about this topic that they ended up using completely fictitious models, which they later admitted were contrived, in order to come up with a so-called "fair market value" metric. There is no precedent for this. And CBRE knows it and I would suggest here that they knew that they were selling the state of Hawaii a bill of goods, and most of you have bought into it like children listening to a fairytale. This might also suggest here that CBRE's conclusions were influenced by Underwood's input and would further suggest that this collusion was illegal. Of course, had you and your committee members really done your research, you would have known all of this.
At 8:13 Underwood attempts to defuse Rep. Kobayashi's question with a mish mash of half truths that an informed observer would have picked up immediately. Rep. Kobayashi rightly points out that all boats are not the same and that Underwood's simplistic rate metric makes no sense. If you listen carefully to what Underwood says, he actually confirms Rep. Kobayashi's concerns while simultaneously appearing to make a case for the perception of a more intelligent metric. If you and committee members were truly informed on this subject, Underwood should have been swarmed with questions after this comment. Instead, there was silence . . . and then you thanked him.
At 8:53 you talk about some of the core issues surrounding the bill: the deplorable state of the harbor system as a result of deliberate neglect by the DLNR/DoBOR and the latter's strategy for doing this; their published intent to hand over, through long-term lease, all public recreational small boat harbors in the state to multinational private interests. These are important issues that set a dangerous precedent, and instead of pursuing these, you end your comment with a question to Underwood about whether he intends to use money derived in the harbor system to upgrade the harbor system. This would be like asking Dame Edna Everage if she likes attention. "OF COURSE we're going to put that money back into the harbor system," [paraphrased] says Underwood, who dutifully reminds us that he must do so under statute. One would have thought that this was common knowledge among informed, well-researched, legislators. And so, why are you tip-toeing around the privatization issue? Underwood put his "Strategic Plan" in writing, in a glossy brochure-style trifold that, we believe, was produced by DTL, Senator Donovan M. Dela Cruz's financial interest. Dela Cruz's WAM committee voted, surprise!, to pass this piece of legislation . . . this kind of corruption has become normalized in the State Legislature and the people of Hawaii are tired of it.
At 9:56 Underwood reminds us that ". . . we're still in serious deficit [regarding outstanding deferred maintenance costs]". What he doesn't say here is that the DLNR/DoBOR have cost the state's Special Boating Fund" quite possibly millions of dollars in unrecoverable funds over the past decade as a result of lost revenue from dozens of unrented slips, for years, through Underwood's repeated bungled attempts at hiring contractors for harbor maintenance, and his agency's failure to properly handle and capitalize on state-impounded abandoned vessels that have had the potential to recoup lost funds through auction. None of this was addressed by your committee during this testimony, leading one to conclude that no one, including you, did your research. The people of Hawaii depend on you, Rep. Tarnas, to do your homework and respond to testimony with concise, relevant questioning. Clearly, none of this happened on this occasion.
At 10:05 Underwood tries to convince your committee that this bill will recoup all of this lost revenue and funding. Anyone who's done their research would instantly know that the rate change for principal habitation families will not only produce an instant deficit for the state, but a significant one at that, as we've pointed out above.
At 10:24 we witness possibly one of the most remarkable of, what now appears to be choreographed, exchanges between yourself and Underwood. You ask Underwood how the pending litigation in circuit court that challenges the very core of this legislation would affect its outcome. Underwood picks up the hand-off and predictably assures everyone that the lawsuit is no big deal (paraphrase) and that "we're currently in an informational exchange" [with the plaintive] . . . and don't worry be happy, "we're working with him on that". Underwood has no legal training and is not working with anyone related to this case, with the possible exception of occasional contact with the Land Board attorney who is mostly concerning himself with his own discovery process. In actual fact, this is full-blown litigation pending in a Hawaii circuit court that quite convincingly makes a case against Underwood's DoBOR and Case's DLNR for ignoring statute, illegally raising rates, and attempting to dupe the public about the "fair market value" metric. If you and your committee would have done your research, you, again, would have swarmed Underwood with questions asking for clarification. Instead . . . there was silence. Sometimes, silence screams loudest.
At 11:50 you ask members if there are any questions, there is a pause and then . . . a resounding silence. At this point, the room should have been alive with informed legislators crawling all over each other for a chance to ask questions about the confusion resulting from the foggy exchanges between you and Underwood. But there was silence. Not one single question.
At 12:03 you remind us that all committee members have a copy of written opposition testimony and presumably they've studied this and were prepared for a vote. But, as we see above, there wasn't a single legislator at that meeting that did his/her homework. Each of you came prepared to do one thing and one thing only: to shove this legislation down the throats of the public, fair or not, legal or not, ethical or not, moral or not -- despite the fact that its basis in fact was severely flawed and currently undergoing legal challenge in a court of law. The people of Hawaii have a right to expect honest government. This is not that.
At 12:58 you, not surprisingly, recommend passage of this bill, despite knowing its fatal flaws . . . and there wasn't one single objection in your committee. It was as if there was a gallery of deaf mutes in attendance.
Rep. Tarnas, you are well versed in the art of appearing transparent, but, to informed onlookers, you preside over a dangerous vaudeville show that threatens the very credibility of our legislature itself.
Sincerely,
Katherine Lindell, Editor
Hawaii Ocean News
P.S.
I read through the opposition statements and I urge you to do the same. Read them carefully. Some were extremely well written, make ironclad points about pending legal issues, the threat of further damage to our budget because of the inevitable sudden drop in Principal Habitation Permit revenues, the expense of creating instant homelessness for some, and a brand new crisis: trying to enforce the legions of new illegal liveaboards that this legislation will surely create. Many of these folks have no place else to go; the attempt at enforcement could only be ugly, ineffectual, and very expensive for the State. On the flip side, Principal Habitation families are the eyes and ears of security in our harbor system. While protecting their own homes, they are simultaneously helping to protect the State's harbor properties.
This kind of expedient, poorly vetted legislative decision making hurts people terribly and unnecessarily, causes homelessness, drives people from their homes and solves not one wit of the real issue at hand in our dilapidated public harbor system. Frankly, the way this legislation is being rammed down the throats of the public smacks of a mindless mean-spiritedness that can only be found in the most depraved governments on Earth.
People are not stupid, Mr. Tarnas. Watch the video carefully and try to see what the public sees. I promise you, if you make an honest effort to put yourself in the shoes of those whose lives will be severely impacted by this poorly thought through legislation, you will become a better leader for it. There are viable, intelligent solutions to the public harbor issue. Listen to the people who know . . . the people who live there and experience the impact of DoBOR's remarkably inept management scheme, every single day. These people are well prepared to make constructive, viable suggestions about how our public harbor system can become world class and still serve the purpose for which it was intended -- a place from which the people of Hawaii can enjoy their island's amazing ocean environment.