RFP for PEGs
CTPA Comments
Documents, Laws and Rules
Chronological order of DCCA & the AG violation(s) of HRS 103D. The appearance is that someone may be responsible for "anticompetitive practices". Another question at this point in time is FOR HOW LONG this has been going on?"

UPDATES  click here to jump to most recent posts

1   2001 email asking DCCA CATV Administrator Sonobe what is their process "to designate a nonprofit as an access organization", "Is DCCA required to post a public notice or Request for Proposal?"

2  Community Television Producers Association (CTPA) President Ed Coll's record request to DCCA for a copy of any RFP for DCCA PEG designee dated 05/28/05 (not the 1st time the question was asked).

3  Original notice  signed on 11/09/05,   not posted online until 11/10/05  4:18 pm 
3a   Email to State Procurement Department    11/18/05

4  DCCA's explanation for the exemption  
      posted 11/18/05   (2 days after SPO approval)

5  Additional DCCA information explaining the need for the exemption,  posted with the approval    11/21/05 

6   Email from State Procurement Department   11/22/05

7  Most Current information as of:       11/22/05

8  Current form07252.pdf posted on SPO website. The original notice with its mistakes is excluded for some reason.

9. 12/12/05  SPO "Disapproval" of DCCA's request for an exemption with SPO Chief Procurement Officer's Comments. (In a nutshell, DCCA & the AG's Office have been signing PEG contracts in violation of state law (HRS 103D. DCCA must now, for the public record, report their violation, why they did it, and what they are doing to make things pono).

10.  11/30/2005  New PEG contract signed by DCCA & AG with full knowledge it violates state law HRS 103D, after  DCCA was denied an exemption (aka "disapproved")!!!

11. 12/23/2005 DCCA Procurement Violation signed by DCCA Director, status pending.

12.   12/30/05  CTPA VP Jeff Garland email to DCCA

13.  01/11/06   Email from Glen Chock

14.   01/13/06   CTPA Pres. Ed Coll's letter to the Attorney General

15.   01/17/06    CTPA Pres. Ed Coll's letter to the Ombudsman

16.   01/18/06   DCCA Press Release RE: statewide meetings  to decide if PEGs should be required to be contracted (get their funding) through state procurement procedures, or be exempted from the law. (HTML & PDF versions)

17.  01/23/06  DCCA Letter to PEGs re cutting funds for 2006.

18.  01/25/06  Akaku board chair letter to DCCA (Quo Warranto)
19.  01-18-2006 Notice of Public Comment Meetings

20.  02/08/06  Request for copy of AG opinion 

21.  02/22/06  DCCA denial

21. 02/24/06   Hawai'i League of Women Voters comments

22. 03/02/06  DCCA Public Comment page posted

22.  3/14/06  OIP Request for Assistance  to obtain the DCCA denied AG opinion.  RFA-P 06-13 opened

23. 04/12/06  DCCA Request for Exemption

24   04/20/06  DCCA response to OIP re DCCA/AG client attorney privilege w OIP request for information.

25.    05/19/05   CTPA Comments re DCCA Request for Exemption

26.  6/15/05   SPO determins PBS Hawaii contracts required to comply with state procurement code.

27.  6/16/05   SPO exempts PEG contracts from RFP for only one more year

28.  7/10/06   'Olelo email to staff telling them to call select clients to attend Procurement Policy Board Meeting

29. 7/13/06   Procurement Policy Board Meeting Agenda

30. 7/18/06   Procurement Policy Board Meeting Minutes

Any other goods or services which the policy board determines by rules or the chief procurement officer determines in writing is available from multiple sources but for which procurement by competitive means is either not practicable or not advantageous to the State; and





















Here is the original notice  signed on 11/09/05,   not posted online until 11/10/05  4:18

Please note on the bottom of the document it states "A copy of this notice of exemption from Chapter 103D, HRS, shall be posted by the Chief Procurement Officer and the purchasing agency in an area accessible to the public, at least seven (7) calendar days prior to any approval action." DCCA Cable Television Division (CATV) sought the least accessible to the public place to post their copy. It was reported by DCCA Office Services supervisor Heather Hicks that CATV asked her division if the bullletin board outside of the CATV office between the restrooms was considered "an area accessible to the public", and that is where CATV posted it, even though it is not what Iwould consider an area accessible to the public on neighbor islands. Chief Procurement Officer Aaron Fujioka posted the notice on the SPO - EXEMPTION FROM CHAPTER 103D  page, but CATV did not see fit to post it on their website to be "accessible to the public" on all islands on demand. In other words it would appear CATV decided to post their exemption request in the area least "accessible to the public". There was no documentation anywhere at the DCCA that the bulletin board was where DCCA posts public notices. When I called the DCCA Director's office and asked where DCCA posts public notices in their building they could not answer. Minutes later while I was on the phone with Ms. Hicks (585-2830), the DCCA Director's secretary Esther Zukeran was in Ms. Hicks division making the same inquiry as to what was the "area accessible to the public" for the Department of Commerce and Consumer Affars (DCCA). Ms. Hicks told me it was funny I asked because recentlly CATV had come to her office making the same inquiry. I asked if it was in November and she replied she didn't recall exactly when, but "something like that". It should be obvious that CATV is not acting "in the spirit of sunshine" or "in the public's best interest".

All that is provided is the notice that DCCA is requesting an exemption with no supporting documents.
DCCA failed to provide the notice "in an area accessible to the public".
DCCA explanations weren't provided on SPO's site until after they approved the exemption request.
Note the contract period said from 12/05 through 6/05 (not 6/06).
SPO posted exemption notice on their own website a day late &/or approved it a day early. (can you say "railroad"?)

Here is DCCA's explanation for the exemption    posted 11/18/05  (2 days after SPO approval)

"Description of goods, services, or construction: Cable television public, educational, and governmental (PEG)
access services until June 30, 2006

Federal law (47 usc §531) allows the State of Hawaii as a franchising authority to establish PEG
requirements in a franchise with cable operators. DCCA provided for PEG access in the State through
the franchise orders it issued to cable operators under FIRS chapter 440G, and the contracts with the
PEG access organizations described below. In franchise orders. DCCA recognized the benefit that
PEG access provides the public and required cable operators (as one of the conditions to obtain cable
television franchises in the State) to provide channels for PEG use and to pay annual PEG access fees
for facilities and equipment

To facilitate public access to PEG programming, DCCA entered into separate contracts with the four
PEG access organizations to (among other things) manage and operate the PEG channels, train the
public to use the PEG facilities and equipment to create programs, and cablecast the programs
created and submitted by the public on the cable operator’s channels. DCCA does not consider these
organizations to be State or government agencies because they are private, non-profit corporations
that are run independent of government, and they have filed articles of incorporation and registered
with the State’s Business Registration Division. (quo warranto? see OIP opinion,  AG Opinion, and 'Olelo v OIP lawsuit which has been appealed)

The PEG access organizations are funded primarily from the annual PEG access fees that the local
cable operator (currently Time Warner) is required to pay pursuant to DCCA's franchise orders. The
cable operator pays these annual PEG access fees directly to the PEG access organizations, and is
allowed to pass these fees on to cable television subscribers under federal law. The cable operator
has elected to pass these fees to subscribers and assesses subscribers on a monthly basis. The PEG
access organizations do not receive any governmental monies either from the general fund or DCCA’s
Compliance Resolution Fund. The name and address of each PEG access organization and the
approximate amounts that the cable operator paid to each PEG access organization in 2005 are as
follows: .... (list of PEGs)

...The current PEG contracts were signed in 1998 and 1999 and were automatIcally renewed annually
until December 2003 (Olelo, Na Leo and Hoike) and June 2004 (Akaku). DCCA then began re-
negotiating these contracts and has been extending them in approximately three-month intervals until
the negotiations are completed.

While reviewing the PEG contracts, DCCA asked the Department of the Attorney General and the
State’s Procurement Office (SPO”) whether DCCA's contracts with these PEG access organizations
are subject to the State Procurement Code. After much discussion, DCCA was informed that these
PEG access contracts are subject to the State Procurement Code and that none of the exemptions in
HRS § 103D-102(b) appear to apply; however, the exemption in HRS § 103D-102(b)(4)(L) allows the
chief procurement officer to determine that a good or service is exempt from the Procurement Code
even though such good or service is available from multiple sources because procurement by
competitive means is either not practicable or not advantageous to the State.
(this appears to say that the Attorney General wrote to DCCA that they have been in violation of the Procurement code since 1994! Of course the document is not public because of client attorney privilege! Also, the AG is supposed to approve state contracts for form and content, so did the AG knowingly approve a contract that they now appear to be saying is a violation of the state procurement code?)

Details of the process or procedure to be followed in selecting the vendor to ensure maximum fair and open competition as
practicable:

The vendors listed above are currently the service providers offering PEG access services in cable
franchise areas throughout the State. Each PEG organization is responsible for five (5) PEG access
channels. PEG Access Channels cable cast programming 24 hours a day, 7 days a week, for a total of
43,800 hours of programming a year. Each PEG access organization has developed operating
procedures, policies and practices to manage PEG channels, facilities, equipment and funding. The
existing PEG access organizations have the expertise to continue to run the access stations and to
provide access services until June 30, 2006. Having the existing PEG access organizations continue
to manage and operate the existing access services would provide stability and continuity of services to
the public until the DCCA completes its public comment meetings and determines whether to issue an
RFP process or seek an exemption.

Explanation describing how procurement by competitive means is either not practicable or net advantageous to the State:

DCCA plans to conduct public meetings to obtain the public’s input and comments on PEG access and
PEG services in the State. These public meetings will be held in each county and will provide the
DCCA with input on whether to proceed with the RFP process or to seek an exemption from the SPO.
There are a number of complex issues that must be addressed if the State issues an RFP, such as
whether the RFP should address issues related to operational practices and policies; transition of
resources, staff, facilities and equipment from existing PEGs to new organization(s); and maintaining
the level of access services with minimal disruption during the transition. DCCA anticipates that the
public comment process and DCCA's evaluation of the issues relating to an RFP will take
approximately seven (7) months (ie.., to approximately June 30, 2006). DCCA will update SPO on the
progress of its evaluation."

Here is additional information regarding DCCA's explanation for the exemption in the approval posted 11/21/05 

"A description of The agency’s internal controls and approval requirements for the exempted procurement:

The Director of Commerce and Consumer Affairs has reviewed and approved the request to obtain a
temporary exemption from the Procurement Code and SPO's approval to extend the four (4) PEG
access contracts from December 1, 2005 to June 30, 2006.

This exemption should be considered for list of exemptions attached to Chapter 3-120, HAR:"  (NO is checked on the form)

Signed by Mark Recktenwald

Here is the current status     In it they only admit to a "posting discrepancy", this time all the necessary documentation appear to be in place, at least on SOP's website. Please note the dollar amount shown below, copied and pasted from the "SPO - EXEMPTION FROM CHAPTER 103D" web page, is less than 1/10th the actual amount (as posted November 22, 2005 9:46 am, still incorrect as of 11/30/05 7:15 am, the day after comments had to be submitted):.
06-20-J 11/22/05 Pending 11/22/05 Cable television public, educational, and governmental (PEG) access services. $ 594000 Various View
  due to the above dollar amount being posted incorrectly, action waited another week.



06-020-J 11/22/05 Disapprove 12/12/05 Cable television public, educational, and governmental (PEG) access services. $ 5941000 Various View


Chief Procurement Officer's Comments:

    When DCCA entered into contracts with 'Olelo, Na Leo, Ho'ike, and Akaku, during
the period 1997-1999, these contracts were subject to the Procurement Code. Despite
timely review of the contract by the Department of the Attorney General, DCCA was
not aware that the Procurement Code applied to these contracts in 1997-1999, and
did not fulfill the requirements of HRS chapter 103D.

The request for an exemption is disapproved. Instead, DCCA shall submit SPO
Form-16, "Procurement Violation: Report of Findings and Corrective Actions Request
for After-the-Fact Payment Approval," and the SPO will, consider the period of the
violation to be from the date of the 1997-1999 contracts to June 30, 2006.

The SPO notes that these contracts do not involve the payment of monies from the
general fund and there is no request for an after-the-fact approval to disburse
general funds.

Aaron S. Fujioka
Chief Procurement Officer












-------- Original Message --------
Subject: Re: policies and procedures to designate access entity
Date: Thu, 1 Nov 2001 11:58:17 -1000
From: Clyde_Sonobe@dcca.state.hi.us
To: Jeff Garland <digitaleye@hi.net> 


Mr. Garland,
I understand that you already have a copy of the contract between Olelo and
the DCCA which should provide the information that you are seeking.  If by
chance you do not have a copy, they are available for your review here in
our offices.  In order to avoid any delays, it would be optimal if you
provided us with dates and times that you are considering stopping by our
offices.

Aloha,
Clyde Sonobe

                                                                                                                   

Clyde's non-answer is above ^^^

                                                                                                                   
                    Jeff Garland                                                                                   
                    <digitaleye@h        To:     Clyde_Sonobe@dcca.state.hi.us                                     
                    i.net>               cc:                                                                       
                                         Subject:     Re: policies and procedures to designate access entity       
                    10/31/2001                                                                                     
                    10:25 AM                                                                                       
                                                                                                                   



Dear Clyde,

     I require information that spells out the procedures DCCA must follow
in order to designate a nonprofit as an access organization. Also, when any
access organization is renegotiating their contract with DCCA, are there
specific procedures that must be followed by DCCA? Is DCCA required to post
a public notice or Request for Proposal?

Sincerely,

Jeff Garland




Clyde_Sonobe@dcca.state.hi.us wrote: Mr. Garland,
In order to respond to your request appropriately, can you please clarify
what information you require.

Aloha,
Clyde Sonobe


                    Jeff Garland
                    <digitaleye@h        To:     DCCA Director Kathryn
Matayoshi <dcca@dcca.state.hi.us>
                    i.net>               cc:
                                         Subject:     policies and
procedures
                    10/30/01
                    11:29 AM



Dear Kathryn,

    May I please inspect or get copies of any policies and procedures
relating to the selection or recognition of an "Access organization" as
defined in Hawai'i Revised Statutes 440G-3.

"§440G-3 Definitions.

"Access organization" means any nonprofit organization designated by the
director to oversee the development, operation, supervision, management,
production, or broadcasting of programs for any channels obtained under
section 440G-8, and any officers, agents, and employees of such an
organization with respect to matters within the course and scope of their
employment by the access organization."

Sincerely,

Jeff Garland

--
Jeff Garland
Hawaii Public Access Media
http://hpam.hi.net

"The minority, the ruling class at present,
has the schools and press, usually the Church as well,
under its thumb.
This enables it to organize and sway the emotions of the masses,
and make its tool of them."

[Albert Einstein, letter to Sigmund Freud, 30 July 1932]


 



















-------- Original Message --------
Subject: CTPA Records request
Date: Tue, 31 May 2005 15:38:26 -1000
From: Glen.WY.Chock@dcca.hawaii.gov
To: coll@kauai.net



Mr. Coll:
This is in response to your email below, addressed to Mark Recktenwald, dated May 28, 2005. Director Recktenwald asked me to respond to you on his behalf.
The records you have requested do not exist.

Glen Chock


Ed Coll <coll@kauai.net>

05/28/2005 09:17 AM
Please respond to coll

       
        To:        "Mark E. Recktenwald" <mrecktenwald@dcca.hawaii.gov>
        cc:        
        Subject:        CTPA Records request

Director Recktenwald,

This is a records request to inspect any and all request(s) for
proposals (RFPs) for a non-profit organization to oversee the
development, operation, supervision, management, production, or
broadcasting of programs for any channels obtained under section 440G-8.

Mahalo in advance for your attention to this matter.

Ed Coll - CTPA


















-------- Original Message --------
Subject: Re: is SPO in violation of state laws &/or administrative rules?
Date: Tue, 22 Nov 2005 15:52:34 -1000
From: aaron.fujioka@hawaii.gov
To: digitaleye@hi.net
CC: Ombudsman Paul Kanoho <complaints@ombudsman.state.hi.us>, Hawai'i State Attorney General <hawaiiag@hawaii.gov>, DCCA Director Mark Recktenwald <mrecktenwald@dcca.hawaii.gov> 



Mr. Garland,

We have reviewed this matter and determined that the purchasing agency
(DCCA) did not post a copy of the notice of exemption request in an area
accessible to the public, at least 7 calendar days prior to any approval
action.  The earlier approval granted by the State Procurement Office (SPO)
has been rescinded.  Therefore, DCCA and the SPO beginning November 22,
2005, will repeat the posting requirements.  DCCA will be posting in an
area accessible to the public and the SPO will post the notice at its
website address "spo.hawaii.gov".  Upon completing the posting
requirements, the SPO will take action on DCCA's request.

Thank you for bringing this matter to our attention.

Aaron S. Fujioka
Administrator
State Procurement Office
587-4700



                                                                           


-------- Original Message --------
Subject: is SPO in violation of state laws &/or administrative rules?
Date: Fri, 18 Nov 2005 12:59:16 -1000
From: jeff garland <digitaleye@hi.net>
To: aaron.fujioka@hawaii.gov
CC: Ombudsman Paul Kanoho <complaints@ombudsman.state.hi.us>, Hawai'i State Attorney General <hawaiiag@hawaii.gov>, DCCA Director Mark Recktenwald <mrecktenwald@dcca.hawaii.gov>


Aloha Aaron,

    SPO appears to be in violation of its own procedures by taking action on 06-20-J in that the actual date and time of posting of the notice in which it states that it should be "in an area accessible to the public" was not done until 11/10/05 at 4:18 pm., less than the 7 days required. Can this process begin again and be done according to rules and laws, or is the decision final under §103D-318 ?

    It would have been nice if DCCA CATV had posted information about what they were trying to accomplish on their website other than in their Cable Advisory Committee meeting minutes that weren't posted until November 15.

    Does the SPO believe that DCCA has been in violation of the law for the past 15 years?

Sincerely,

Jeff Garland








§3-131-4 Civil and criminal penalties. (a)
Certain violations of chapter 103D, HRS, may be subject to civil and criminal penalties as described below:
(1) Civil penalties. A person who contracts for, or purchases goods, services, or construction, in a manner the person knows to be contrary to the requirements of the procurement law is liable for all costs and damages to the State arising out of the violation.
(2) Criminal penalties. A person who intentionally or knowingly contracts for or purchases goods, services, or construction, under a scheme or artifice to avoid the requirements of the procurement law shall be guilty of a misdemeanor, and in addition to any applicable criminal penalties, shall be subject to removal from office and shall be liable to the State or the appropriate county for any sum paid by it in connection with the violation, and that sum, together with interest and costs, shall be recoverable by the State or county.
(b) In order for civil penalties to apply, a person must have knowingly violated the requirements of the law. In other words, the person committing the violation must be aware that he or she is acting contrary to the requirements of the law at the time the violation occurs. Violations that are the result of administrative error or mistake, ignorance, or carelessness are usually not subject to the civil penalties. The determining factor is what the person understood the procurement requirements to be when the violation occurred, and whether or not the person believed he or she was acting in compliance with those requirements.
(c) In order for criminal penalties to apply, a person must have knowingly or intentionally engaged in a scheme or artifice to avoid the requirements of the law. The violation must have been committed in a deliberate manner, involving some calculated means, such as parceling for a single procurement, a deliberate misstatement of fact, or an after-the-fact purchase, which is purposefully designed to avoid the requirements of the law. Legally admissible documentary evidence of the wrongdoing must be available to law enforcement authorities in order for criminal prosecution to be undertaken. Law enforcement authorities will also need to determine whether personal gain was intended or involved for either the person committing the violation, a friend or relative of the person, or the vendor, or whether some other vendor was significantly injured, whether intended or not. [Eff 12/15/95; comp 11/17/97; comp 2/16/02; comp 11/25/02 ] (Auth: HRS §103D-202) (Imp: HRS §103D-106)

§3-131-5 Corrective action. When a purchasing violation has occurred, the head of the purchasing agency shall determine whether any corrective action is necessary to remedy the situation, or prevent its reoccurrence. Action may include training, or a reduction of an employee's purchasing authority. [Eff 12/15/95; comp 11/17/97; comp 2/16/02; comp 11/25/02 ] (Auth: HRS §103D-202) (Imp: HRS §103D-106)

§3-131-6 Processing procurement violations. (a) The purchasing agency shall consult with the chief procurement officer on all procurement violations and shall provide the chief procurement officer with a report of findings and corrective actions. The chief procurement officer shall determine whether appropriate corrective actions were taken. The report of findings and corrective actions shall include, at a minimum:
(1) The facts and circumstances leading to the need for the good or service, including the explanation as to why established procedures were not followed;
(2) Whether there are any indications of intent to deliberately evade established purchasing procedures;
(3) Any lack of procurement information or training;
(4) Whether this is the first occurrence; and
(5) Whether appropriate written assurance and safeguards have been established to preclude


Comments:

Wendy Arbeit
Ed Coll
Jeff Garland


































-------- Original Message --------
Subject: Deny DCCA PEG Exemption from State Procurement laws
Date: Tue, 29 Nov 2005 15:00:15 -1000
From: Wendy Arbeit <arbeit@hi.net>
To: aaron.fujioka@hawaii.gov
CC: mrecktenwald@dcca.hawaii.gov, Governor Linda Lingle <gov@hawaii.gov>


Chief Procurement Officer/State Procurement Office Administrator Fujioka,

Please reject the DCCA request for exemption from state procurement law request (06-20-J) for the following reasons:

DCCA has a pattern of intentionally acting out of the public's eye. The public has requested for years that RFPs be let for the PEGs. The public has also repeatedly requested that it be included in contract negotiations to be sure that proper benchmarks are included. DCCA has staunchly rejected these requests.

In addition, after public input DCCA's CATV generated a PEG plan. It has since allowed PEGs to violate this plan in the areas that relate to sunshine -- and without public input.

To allow DCCA a waiver is to allow it to continue with its back-room arrangements that ultimately result in shortchanging the public.

You have examples of CATV's pattern of duplicity in its responses to the Request for Exemption form.

In the Description of goods and services DCCA neglects to admit that "among other things" Olelo creates its own programming, and set airtime quotas (block programming) thus severely limiting the public's true access too the airwaves. Also not noted that although DCCA doesn't consider the organizations to be State or government agencies, lawyers of the State Office of Information Practices does. DCCA also neglects to mention that the PEG funding is not merely a result of a franchise order; it was mandated by the Hawaii State Legislature.

The amount listed for Olelo's budget is hundreds of thousands of dollars short.

Page two of your request form seeks an explanation for how procurement by competitive means is not practicable or advantageous to the state. The supplied paragraph does not respond to the question. The closest it comes is to say that "there are a number of complex issues that must be addressed" and therefore it will call for public comment.  Is CATV saying if there are reasons for requiring a waiver then they are too complex for it so it needs the public to tell it what they are? If CATV had been on the ball it would have been addressing these issues, not just now, but over the last dozen years. Or is this another form of duplicity? If DCCA has a reason for this application, it must know it and should have listed it.

The last question asks for the details of the process or procedure to be followed in selecting the vendor in a fair an open manner. The response sidesteps the question, listing instead some of the activities of the PEGs and indicating its intention to have them continue in like manner for the next 6 months. Makes you wonder if our tax dollars aren't being wasted on the Cable Division when it can't (or won't) even do its homework to provide the most basic information required for such an important exemption.

 Finally, I would like to know, if this temporary exemption is granted, can the contracts that have been in negotiation be signed during that period -- thus obviating the need for the RFP process?

CATV has been violating the law to please special interests. It should be prosecuted, not be given permission to continue.

Thank you for considering my concerns.

Wendy Arbeit
Honolulu



































-------- Original Message --------
Subject: Deny DCCA PEG Exemption from State Procurement Laws
Date: Mon, 28 Nov 2005 15:55:47 -1000
From: Ed Coll <coll@kauai.net>
Reply-To: coll@kauai.net
Organization: Kauai Net
To: aaron.fujioka@hawaii.gov, Clyde.Sonobe@dcca.hawaii.gov
CC: Mark E. Recktenwald <mrecktenwald@dcca.hawaii.gov> 


This is a request that SPO disapprove the DCCA exemption from state 
procurement law request (06-20-J) for the following reasons:

1. To quote from the DCCA explanation:
"While reviewing the PEG contracts, DCCA asked the Department of the 
Attorney General and the State’s Procurement Office ('SPO') whether 
DCCA's contracts with these PEG access organizations are subject to the 
State Procurement Code."

While this statement may be factual it is deceptive since DCCA has been 
aware of this RFP issue since at least 1994. CTPA and others have raised 
these concerns to DCCA repeatedly without resolution.

On page 2 of the form under the heading:
"Explanation describing how procurement by competitive means is either 
not practicable or net advantageous to the State" the DCCA is 
unresponsive simply citing "a number of complex issues....", and 
possible future actions that should have been addressed years ago. All 
these issues should certainly have been addressed before issuing the 
DCCA Final PEG Plan in Jan 2004 and before this request for exemption.

2. The DCCA assertion that,
"The existing PEG access organizations have the expertise to continue to 
run the access stations and to provide access services until June 30, 2006."

The above statement is questionable given the numerous complaints by PEG 
access public users that are well documented by DCCA.

3. Finally according to DCCA Director Recktenwald, the Attorney 
General's office (or SPO it was not clear) stated:
"DCCA was informed that these PEG access contracts are subject to the 
State Procurement Code and that none of the exemptions in HRS § 
103D-102(b) appear to apply."

If Director Recktenwald is correct any expertise in "managing and 
operate the existing access services" to "provide stability and 
continuity of services to the public" was gained from years of sole 
source contracts in violation of state procurement law. Approving this 
exemption would allow DCCA and the existing PEG providers to profit from 
the poisonous fruit of past and repeated procurement law violations.

CTPA does not believe the legislative intent of HRS § 103D-102(b)(4)(L) 
was that past procurement law violations by DCCA should now allow DCCA 
to request exemption claiming "advantageous to the state" when the 
advantage to the state was gained by prior violations of state 
procurement law.

Please reject this request for exemption.




































-------- Original Message --------
Subject: Comments regarding 06-20-J DCCA request for exemption from State Procurement Law
Date: Tue, 29 Nov 2005 09:18:49 -1000
From: jeff garland <digitaleye@hi.net>
To: Aaron Fujioka <aaron.fujioka@hawaii.gov>
CC: Governor Linda Lingle <gov@hawaii.gov>


Aloha Chief Procurement Officer/State Procurement Office Administrator Fujioka,

     Please consider the attached HTML document as my comments, questions and requests for more information regarding 06-20-J as posted on the "SPO - EXEMPTION FROM CHAPTER 103D" web page on November 22, 2005 at 9:46 am. I respectfully request you make it publicly accessible in a format which does not exclude hyperlinks provided, keeping in mind that the document was originally electronically created, and also provided, in HTML.

     In a nutshell, prosecute DCCA & the AG for violating your code, don't exempt them. The only possible explanation I can see for why this is not advantageous to the state, is because the state is remiss and should be held accountable. They shouldn't even be considered for status above the law!!

Please include this email as part of my attached comments.

Mahalo for the opportunity, and your consideration.

jg
"Progress isn't done by governments or spirits, but by chaps...
What keeps it moving is not a big public shoving its foot forward, but a little mosquito biting a big public behind.
If you left the world to itself, it would die of fatty degeneration in about six weeks.
It would lie down in the nice rich mudbank where it finds itself and close its eyes and stuff its ears
 and let itself be fed to death down a pipe-line. But God, not intending to lose a valuable pedigree hog that way,
has sent the mosquito to give it exercise, and fever and the fear of death."
Joyce Cary

HTML Attachment:

1   'Olelo's budget approximation is $800,000.00 short of last year's. Their 2006 budget was supposed to be submitted to DCCA "no later than November 1st", but has yet to be, which is in violation of their contract.

2   It is unclear why the first attempt at an exemption was done in a manner that was not "accessible to the public" or why supporting documents were not posted until after an "action" had already been taken. What is clear is that DCCA CATV has a history of making decisions that affect the public while providing as minimal an opportunity for input as possible, if at all.

3   DCCA's description of PEG services says "(among other things)" and then goes on to list services they are to provide for "the public". What is curiously omitted is the fact that 'Olelo is also providing the listed services to themselves and their chosen, which has been questioned for years whether or not that should be or ever was the intent. The term "(among other things)" needs to be spelled out for the public to be able to make informed comment and truly be part of the process. If the PEGs are to be considered vendors under the state procurement code, the services they must provide must be clear and comprehensive.

4  DCCA states: "DCCA does not consider these organizations to be State or government agencies", but the OIP and Attorney General have opined otherwise. Quo Warranto? (See OIP Opinion 02-08 & the AG's opinion re PEG audits) There is a lawsuit pending in the Hawaii Supreme Court regarding 'Olelo's status as an "agency" under HRS Chapter 92f. There was a question raised in 1989, "Is the proposed nonprofit access corporation a "public agency" and thereby subject to the Sunshine Law (Chapter 92 of the Revised Code)?"

5   DCCA states "DCCA asked the Department of the Attorney General and the State's Procurement Office (SPO) whether DCCA's contracts with these PEG access organizations are subject to the State Procurement Code. After much discussion, DCCA was informed that these PEG access contracts are subject to the State Procurement Code and that none of the exemptions in HRS § 103D-102(b) appear to apply". Who "informed" DCCA these PEG access organizations are subject to the State Procurement Code? Where is the documentation? If it was the AG who informed DCCA then they appear to be contradicting their own opinion that PEG organizations are agencies for legislative audits and the OIP opinion, which the AG Is defending in Hawaii Supreme court. Can a state agency be a vendor to the state?

6   DCCA states "Each PEG access organization has developed operating procedures, policies and practices to manage PEG channels, facilities, equipment and funding.", but fails to mention that DCCA does not maintain those documents so they have plausible deniability as to whether or not those procedures, policies and practices are in compliance with HRS 440G & other state laws, HAR 16-131, federal law, or with the PEGs' Articles of  Incorporation & bylaws which state "the Corporation shall: maintain those cable channels dedicated to public, educational and governmental use in a manner that is free of censorship and control of program content...develop and enforce such rules and policies that will ensure equitable access to these channels and production consistent with applicable state or federal laws." For years 'Olelo has promised to amend their 63 page operating procedures to be more in line with state and federal laws, yet to date nothing has changed since 2001 when they amended them to allow for more discriminatory practices. In DCCA's PEG Plan it states in regards to the PEGs' control of program content "The DCCA has given the PEGs discretion to determine whether, and to what extent, they should engage in such activities. The DCCA will continue to allow the PEGs discretion in this area." If there is an RFP then it should spell out exactly what the state expects of PEGs in return for the millions of dollars annually that cable subscribers must pay. The current laws, rules and contracts are intentionally vague, which appears to be an attempt to defraud Hawai'i citizens.

7 DCCA appears to be saying the statewide meetings are for the purpose "to obtain the public's input and comments on PEG access and PEG services in the State." How will yet another process of listening to PEG corporation shills "provide the DCCA with input on whether to proceed with the RFP process or to seek an exemption from the SPO"? DCCA still has their "PEG Plan" from 3 years ago, supposedly resulting from the same type of PEG manipulated meetings, to fully implement. Many analogous studies have been done over the past 18 years which appear to become only "another study collecting dust on a shelf somewhere" as characterized by the DCCA Director himself at a Cable Advisory Committee meeting in Hilo. Do we need another?

8   Will DCCA be allowed to sign any new contract with any PEG corporation during the 7 month exemption period? Contracts are being drafted right now to take place of the "supplemental agreements" that have been in place rather than the ones promised 2 years ago in the DCCA PEG Plan. Why has it taken the Attorney General, who approves all PEG contracts for form and content, 12 years to figure out that these contracts have been done in violation of the state procurement law since it was enacted?

9    Is an exemption from the law absolutely necessary? It doesn't appear to have been for the past 12 years!

10   Will the DCCA or the AG be investigated &/or charged with any Violations? Will there be Penalties &/or Corrective action to those responsible for noncompliance with state law for the past 12 years? Should the state employees responsible get off scott free? Does the expression "ignorance to the law is no excuse" only apply to The People, but not Government? Will SPO join in the collusion to defraud The People by approving an exemption for now apparent good reason?

11   On SPO's form it asks the question " Details of the process or procedure to be followed in selecting the vendor to ensure maximum fair and open competition as practicable:" DCCA does not answer the question!

12   On SPO's form it requests an "Explanation describing how procurement by competitive means is either not practicable or not advantageous to the State:" DCCA states only that "DCCA will update SPO on the progress of its evaluation". That should be considered an unacceptable explanation. SPO should not give an exemption until DCCA makes clear why an RFP process is "not practicable or not advantageous to the State".

 13    In 06-20-J SPO had an opportunity to post comments, but declined to take advantage of the opportunity to inform the public by leaving the box for comments blank.

14    Is the SPO in the habit of providing exemptions rather than enforcement of their law?

15   Why did SPO initially fast track DCCA's request and approve it in less time than required by law?

Please, in the best interests of the public, do not exempt DCCA from state procurement law as requested in 06-20-J, at least until they expand on their obvious, apparently intentional, omissions I have noted. Instead, charge them for violating your Procurement Code, or perhaps it would be more in the public's best interest to ask for an investigation under U.S. Code, TITLE 16, CHAPTER 96 &/or TITLE 18 CHAPTER 47 § 1029, and other federal and state laws, including possible violation of the First Amendment.

Sincerely,

Jeff Garland
Subject: URGENT Record & Information request.
Date: Fri, 30 Dec 2005 13:27:19 -1000
From: jeff garland <digitaleye@hi.net>
To: DCCA Director Mark Recktenwald <mrecktenwald@dcca.hawaii.gov>, "Rodney J. Tam Esq." <Rodney.J.Tam@hawaii.gov>
CC: Aaron Fujioka <aaron.fujioka@hawaii.gov>, Hawai'i State Attorney General <hawaiiag@hawaii.gov>, Esther Zukeran <ezukeran@dcca.hawaii.gov>


Aloha Director Recktenwald and Deputy Attorney General Rodney Tam,

    As usual regarding PEG matters, DCCA's responses are full of apparently intentional ambiguities.

     In your SPO Form-16 Procurement Violation, you state "Until recently, DCCA was not aware that the PEG access contracts were subject to the State's Procurement Code" (emphasis added). Could you please provide me with a more precise date for when DCCA &/or the Attorney General's office became aware?

    DCCA also states "To the best of our knowledge, this appears to be the first occurrence of this type" (emphasis added). Can DCCA &/or the Attorney General's office unequivocally state this is absolutely the first occurrence? Did you take a deposition from past directors &/or Cable Television Division Administrators they were also unaware they were required to follow Procurement Laws regarding PEG contracts? If so, may I obtain a copy?

     Under the assurance and safeguards section DCCA states "the Director has provided written direction to the Cable Television Division that contracts for PEG-type services should be subject to competitive bidding pursuant to HRS §103D, unless exempted." May I please have a copy of that document in the electronic format in which it was created to disseminate widely?.

    Your promptest possible response will be greatly appreciated as it will facilitate the public's continued involvement in this democratic process, before it is too late. Your response will also help clarify whether suspicion of collusion or other anticompetitive practices is warranted.

Sincerely,

Jeff Garland
V.P. CTPA

[§103D-319] Reporting of anticompetitive practices. When for any reason collusion or other anticompetitive practices are suspected among any bidders or offerors, a notice of the relevant facts shall be transmitted to the attorney general. [L Sp 1993, c 8, pt of §2]

     




Subject: Fw: URGENT Record & Information request.
Date: Wed, 11 Jan 2006 16:18:05 -1000
From: Glen.WY.Chock@dcca.hawaii.gov
To: digitaleye@hi.net
CC: Rodney.J.Tam@hawaii.gov



Mr. Garland:

In response to your three questions:

1) On October 12, 2005, DCCA received an opinion from the Department of the Attorney General which concluded that the PEG contracts were subject to the State's Procurement Code.  We consulted with the State Procurement Office on November 1, 2005, which informed us that it concurred with the Attorney General's opinion.  Based on these opinions from SPO and the AG, the Department concluded that the State Procurement Code was applicable.  

2) The Department did not depose prior directors or  CATV administrators.  Since current Department personnel do not have personal knowledge of events that preceded their tenure, we qualified the statement by noting that it was "to the best of our knowledge."

3) A copy of my directive to the Cable Television Division that contracts for PEG type services should be subject to competitive bidding is not available nor maintained in electronic format. You are, however, welcome to view a hardcopy at CATV's office during normal business hours or a hardcopy may be reproduced for you at $ 0.25 per page.

Sincerely,

Mark Recktenwald






























-------- Original Message --------
Subject: Re: Fw: URGENT Record & Information request.
Date: Fri, 13 Jan 2006 08:19:53 -1000
From: jeff garland <digitaleye@hi.net>
To: DCCA Director Mark Recktenwald <mrecktenwald@dcca.hawaii.gov>
CC: Glen.WY.Chock@dcca.hawaii.gov, Rodney.J.Tam@hawaii.gov, Esther Zukeran <ezukeran@dcca.hawaii.gov>, Aaron Fujioka <aaron.fujioka@hawaii.gov>, CTPA President Edward Coll <coll@kauai.net>
References: <OF9570E0FC.E3111E91-ON0A2570F4.000C0BA7-0A2570F4.000CA426@dcca.hawaii.gov>


Glen.WY.Chock@dcca.hawaii.gov wrote:
Mr. Garland:
In response to your three questions:

1) On October 12, 2005, DCCA received an opinion from the Department of the Attorney General which concluded that the PEG contracts were subject to the State's Procurement Code.  We consulted with the State Procurement Office on November 1, 2005, which informed us that it concurred with the Attorney General's opinion.  Based on these opinions from SPO and the AG, the Department concluded that the State Procurement Code was applicable.  
Mark, this response does not indicate when DCCA (or whomever) requested an opinion from the Attorney General, or whether it was the first time. It does not answer the intent of my question which is to establish the exact date DCCA became aware that the PEG contracts COULD have to be by bid? My emailed question to the DCCA Director in May of 2001, "Is DCCA required to post a public notice or Request for Proposal?", should have required her or Mr. Sonobe to request an opinion over 4 years ago!! When did DCCA first become aware that the PEG contracts could have to comply with state procurement code (exact date)? When did DCCA, or whomever asked, first ask the AG for an opinion (exact date)?
2) The Department did not depose prior directors or  CATV administrators.  Since current Department personnel do not have personal knowledge of events that preceded their tenure, we qualified the statement by noting that it was "to the best of our knowledge."
This is a most troubling response seeing as how many responses to questions to DCCA regarding PEGs were responded to with "I don't recall", and "we do not maintain that record". For DCCA, "to the best of our knowledge" appears to have been a stock answer to provide for their plausible deniability, not the public's best interests. When I asked past DCCA Director Alm if he had asked for a formal opinion of the AG regarding PEG access corporations' status as agencies, he said "NO", when asked if he had asked for an informal opinion he responded "I don't recall". 'Olelo's DCCA majority appointed board, their staff, and their attorney have expressed concerns prior to August 2002 to date that their status as an agency could have implications beyond compliance to HRS 92 & 92f, including being required to go through state procurement procedures. Did the DCCA appointed board director's keep their knowledge that they should be going through an RFP process in order to get the franchise moneys from DCCA?  Your responses give the appearance that until October 12. 2005 DCCA had not even asked the question regarding PEG contracts having to follow state procurement code, which I highly doubt. It appears there is an intentional attempt to cover up the whole truth of possible collusion or other anticompetitive practices, or ay least, the ineptness of the Cable Television Division and the Attorney General's office. If past DCCA Directors were guilty of collusion or other anticompetitive practices, should they be able to just get off the hook for illegally dispersing millions of dollars to organizations they helped create and then controlled by continually threatening to hold back funds? I think not and respectfully request that past directors and DCCA appointed board directors be deposed, under oath. Why would a "private nonprofit" continue to give majority board appointment power to state government if they weren't colluding with them? Why did a past DCCA Director threaten to cut off Akaku's funds if they didn't put the majority appointment clause back into their bylaws, if not to continue collusion or state control? Why are DCCA meetings with their appointed PEG access corporation board directors held with no minutes available to the public? That fact alone creates suspicion of collusion!
3) A copy of my directive to the Cable Television Division that contracts for PEG type services should be subject to competitive bidding is not available nor maintained in electronic format. You are, however, welcome to view a hardcopy at CATV's office during normal business hours or a hardcopy may be reproduced for you at $ 0.25 per page.
Please provide a page count immediately (not in 10 days!) to avoid further delay.

Even though we have a phone conversation scheduled for today, and you may answer these questions verbally, I respectfully request a written response.

Sincerely,

Jeff Garland


Sincerely,

Mark Recktenwald




jeff garland <digitaleye@hi.net>

12/30/2005 01:27 PM

       
        To:        DCCA Director Mark Recktenwald <mrecktenwald@dcca.hawaii.gov>, "Rodney J. Tam Esq." <Rodney.J.Tam@hawaii.gov>
        cc:        Aaron Fujioka <aaron.fujioka@hawaii.gov>, Hawai'i State Attorney General <hawaiiag@hawaii.gov>, Esther Zukeran <ezukeran@dcca.hawaii.gov>
        Subject:        URGENT    Record & Information request.



Aloha Director Recktenwald and Deputy Attorney General Rodney Tam,

   As usual regarding PEG matters, DCCA's responses are full of apparently intentional ambiguities.

    In your SPO Form-16 Procurement Violation, you state "Until recently, DCCA was not aware that the PEG access contracts were subject to the State's Procurement Code" (emphasis added). Could you please provide me with a more precise date for when DCCA &/or the Attorney General's office became aware?

   DCCA also states "To the best of our knowledge, this appears to be the first occurrence of this type" (emphasis added). Can DCCA &/or the Attorney General's office unequivocally state this is absolutely the first occurrence? Did you take a deposition from past directors &/or Cable Television Division Administrators they were also unaware they were required to follow Procurement Laws regarding PEG contracts? If so, may I obtain a copy?

    Under the assurance and safeguards section DCCA states "the Director has provided written direction to the Cable Television Division that contracts for PEG-type services should be subject to competitive bidding pursuant to HRS §103D, unless exempted." May I please have a copy of that document in the electronic format in which it was created to disseminate widely?.

   Your promptest possible response will be greatly appreciated as it will facilitate the public's continued involvement in this democratic process, before it is too late. Your response will also help clarify whether suspicion of collusion or other anticompetitive practices is warranted.

Sincerely,

Jeff Garland
V.P. CTPA




[§103D-319] Reporting of anticompetitive practices. When for any reason collusion or other anticompetitive practices are suspected among any bidders or offerors, a notice of the relevant facts shall be transmitted to the attorney general. [L Sp 1993, c 8, pt of §2]

     





























DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS

NOTICE OF PUBLIC COMMENT MEETINGS

STATEWIDE PUBLIC. EDUCATION & GOVERNMENT (“PEG”) ACCESS SERVICES

East Hawaii — Hilo
DATE: Wednesday, February 1, 2006
TIME: 4:00 p.m. to 6:00 p.m.
LOCATION: State Office Building-Hilo
Conference Rooms A, B, C
 75 Aupuni Street

Kahului, Maui
DATE: Wednesday, February 15, 2006
TIME: 4:00 p.m. to 6:00 p.m.
LOCATION: Maui Community College
Ka'a'ike Building, Room 105 B/C/D
310 West Kaahumanu Avenue
 Lihue, Kauai
    DATE: Wednesday, February 8, 2006
    TIME: 4:00 p.m. to 6:00 p.m.
    LOCATION: State Office Building
        2”~ Floor, Rooms A, B, C
       3060 Eiwa Street

        Honolulu, Oahu
    DATE: Wednesday, February 22, 2006
    TIME: 4:00 p.m. to 6:00 p.m.
    LOCATION: King Kalakaua Building-DCCA
        Queen Lili’uokalani Conference Rm
        335 Merchant Street

Purpose:

The Department of Commerce and Consumer Affairs ("DCCA") Cable Television Division (“CATV”) I. seeking to obtain the public's general input and comments on issues relating to public access television services, whether the department should seek an exemption from the requirement that those services be procured through a competitive bid process and, if not, what requirements the department should include in any request for proposal.

1.    Please comment on the services that are provided by the Public, Education, and Government (“PEG’) organization in your respective county: Akaku (Maui), Ho’ike (Kauai), Na Leo (Hawaii) and ‘Olelo (Oahu). Examples would include but not be limited to the following:
A.    Do their hours of operation satisfy your needs?
8.    The availability and quality of their equipment?
C.    The quality of training provided.
D.    How knowledgeable is their staff?
B.    Overall quality of services provided to their clients.

2.    If a Request for Proposal (RFP”), which is a competitive bid process, for PEG services was
issued by the DCCA, what requirements do you think should be included? Please comment on these as well as other items that should be considered. Examples would indclude but not be limited to the following:

-1-

A.    Operational Management and Administration

1.    Operation of Access Channels
2.    Provision and Care of Facilities and Equipment
3.    Programming policies and practices
4.    Provide additional Media Services
5.    Training for equipment utilization
6.    Support Services
7.    Train and Organize Producers/Volunteers
8.    Outreach, Ascertainment and Promotion
9.    Customer Service and Complaints
10.    Operating Policies and Procedures
11.    Reporting Requirements
12.    Strategic and Operational Planning
13.    Facilitated Production

B. Financial Management

1.    Budgeting
2.    Financial Statements and Auditing
3.    Policies and Procedures, Training Manual
4.    Insurance
5.    Reporting requirements
6.    Funding

All interested persons will be afforded the opportunity to submit their comments, both orally and in writing, at the time of the public comment meetings. Whether interested persons wish to present oral testimony or not, all testimony should be written and submitted to the CATV Division via the following:
Department of Commerce and Consumer Affairs
P.O. Box 541
Honolulu, Hawaii 96809

Deadline to submit written comments to DCCA is Friday, February 24.2006

Copies of this notice may be obtained at:
Cable Television Division
335 Merchant Street, Room 101
Honolulu, Hawaii 96813
-2-

Individuals who require special needs accommodations may request assistance by writing or contacting Ms. Patti Kodama at the address above or at (808) 588-2620 at least seven (7) working days prior to the scheduled public comment meeting.































-------- Original Message --------
Subject: CTPA requests Hawaii Attorney General investigate DCCA procurment law violations
Date: Tue, 17 Jan 2006 10:55:40 -1000
From: Ed Coll <coll@kauai.net>
Reply-To: coll@kauai.net
Organization: Kauai Net
To: complaints@ombudsman.hawaii.gov 


Aloha Lynn,

Mahalo for taking my call today requesting assistance regarding my 
request to the AG to investigate state procurement law violation by 
DCCA.  To date the AG has not responded to my 12-29-05 email.  Below is 
an email you requested. It is from Community Television Producers 
Association (CTPA) member Jeff Garland to DCCA CATV administrator Clyde 
Sonobe in 2001 and DCCA's non-nresponsive reply from administrator Sonobe.

Mahalo in advance for your help in this matter.

--- begin email ---

Jeff Garland                                                                                   
                   <digitaleye@h        To:     Clyde_Sonobe@dcca.state.hi.us                                     
                   i.net>               cc:                                                                       
                                        Subject:     Re: policies and procedures to designate access entity       
                   10/31/2001                                                                                     
                   10:25 AM                                                                                       
                                                                                                                  



Dear Clyde,

    I require information that spells out the procedures DCCA must follow
in order to designate a nonprofit as an access organization <http://hpam.hi.net/HRS/hrs440g.html#3>. Also, when any
access organization is renegotiating their contract with DCCA, are there
specific procedures that must be followed by DCCA? Is DCCA required to post
a public notice or Request for Proposal?

Sincerely,

Jeff Garland
--- end email ---


--- begin reply ---


Subject: 	Re: policies and procedures to designate access entity
Date: 	Thu, 1 Nov 2001 11:58:17 -1000
From: 	Clyde_Sonobe@dcca.state.hi.us
To: 	Jeff Garland <digitaleye@hi.net>



Mr. Garland,
I understand that you already have a copy of the contract between Olelo and
the DCCA which should provide the information that you are seeking. If by
chance you do not have a copy, they are available for your review here in
our offices. In order to avoid any delays, it would be optimal if you
provided us with dates and times that you are considering stopping by our
offices.

Aloha,
Clyde Sonobe

--- end reply ---


































Dear Mr. Recktenwald,

    Recently, your Department, the Department of Commerce and Consumer Affairs (the 'DCCA') released a document dated, January 23, 2006 (the 'Document') in which it purports to take action in behalf of the DCCA.

    As Chairman of the Board of Maui County Community Television, Inc., d/b/a Akaku: Maui Community Television (Akaku), I am charged with looking after the welfare of our non-profit corporation and the empowerment of the Maui Nui community's voice through access to media.

    After careful review of the administrative rules adopted by the DCCA and the enabling statute of Haw. Rev. Stat. §  440G, I have been unable to locate a specific rule which grants the DCCA authority to make this decision.

    Haw. Rev. Stat. § 91-1(4) defines a rule as 'each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency.'

    As you may be aware,  the Hawai'i Supreme Court in Shoreline Transportation Inc., v. Roberts Tours and Transportation, 70 Haw. 585, 591 (1989), stated: 'Rulemaking is the process by which an agency lays down new prescriptions to govern the future conduct of those subject to its authority; adjudication is the process by which the agency applies either law or policy, or both, to the facts of a particular case.' (citations omitted)

    If this is indeed has been rule making within the understanding of Haw. Rev. Stat.  § 91, please indicate how the DCCA has complied with Haw. Rev. Stat. § 91-3(a) including but not limited to the date in which a copy of the proposed rule was filed with the Office of the Lieutenant Governor.

    If the DCCA does not consider this document to have been produced by the rule making process, then it must be decision and order of an adjudicatory nature. If it is a contested case matter and not a rule-making matter, Akaku obviously has a vested interest at stake to which the requirements of procedural due process attach. Akaku has not been notified, pursuant to Haw. Rev. Stat. § 91-9.5 of any contested case hearing. Moreover, if this indeed a contested case matter that, for one reason or another, has omitted Akaku's necessary presence, Akaku hereby petitions to intervene in the matter.

    Finally, if this is neither a contested case or an act of rule making, please state the legal basis and authority for the DCCA to engage in this conduct. If this is neither rule making nor a contested case, Akaku hereby petitions and seeks a declaratory ruling of the Director pursuant to §16-301-04 that this action has been made (1) in excess of the statutory authority or jurisdiction of the DCCA and (2) upon unlawful procedure.

    Sincerely yours,


    JAY APRIL
    Chairman
    Akaku: Maui Community Television

cc: Nate Smith



Mr Garland:
Director Recktenwald asked me to respond to your records request, specifically for  "a copy of DCCA's request for an opinion and the resulting opinion".
Be advised that both documents are covered under the attorney-client privilege and therefore will not be disclosed. Additionally, after consulting with the Attorney General's office, the attorney-client privilege was never waived.

Glen Chock




jeff garland <digitaleye@hi.net>

02/08/2006 08:37 AM

       
        To:        Mark.E.Recktenwald@dcca.hawaii.gov
        cc:        Glen.WY.Chock@dcca.hawaii.gov, Rodney.J.Tam@hawaii.gov, Esther Zukeran <ezukeran@dcca.hawaii.gov>, Aaron Fujioka <aaron.fujioka@hawaii.gov>, CTPA President Edward Coll <coll@kauai.net>, Hawai'i State Attorney General <hawaiiag@hawaii.gov>, Ombudsman <complaints@ombudsman.state.hi.us>, Governor Linda Lingle <gov@hawaii.gov>
        Subject:        Re: Fw: URGENT    Record & Information request.





Mark.E.Recktenwald@dcca.hawaii.gov wrote:
Mr Garland:

In response to your questions or requests in your email dated January 13,
2006:

1. When did DCCA first become aware that the PEG contracts could have to
comply with state procurement code (exact date)?
Reply:  The Department submitted a written request for an opinion to the
Department of the Attorney General on August 25, 2005.  Beyond that, your
question is too unclear (i.e., asking for an entity's knowledge of when
something "could" be subject to a complex body of law) and accordingly
cannot fairly by answered.  The Department consulted with the Department of
the Attorney General during the period we were negotiating the new
contracts with the PEG entities.  Procurement issues were discussed during
those consultations, although the substance of those discussions is
confidential under the attorney-client privilege.
 
The recent period in which DCCA began negotiating new PEG contracts began prior to December 31, 2003, some 3 years ago. The current illegal contracts were negotiated in 1997 - 1998, 3-4 years after the code was enacted.  I can only assume that you wish to invoke client-attorney privilege because disclosing those discussions could incriminate DCCA & the Attorney General's office, thus the Governor's office, which greatly concerns me. That position contradicts the statement "DCCA believes openness and accountability are crucial" and the Governor's campaign platform. DCCA, SPO and the AG have yet to openly depose past & present DCCA Directors, Deputy Directors, Cable Television Division administrators and DCCA appointed PEG Access board directors regarding what you wish protected under client-attorney privilege. The appearance is that state agencies are colluding to cover up anticompetative and anti-sunshine practices to protect government employees over the public's best interest. This is most disappointing coming from someone who has such an extensive background in white-collar crime. I do understand that by disclosing the privileged information you could potentially be providing grounds for a federal lawsuit, so understand your caution, but do not agree with it. In my limited understanding of the law, since DCCA has disclosed the substance of the AG opinion, it appears to me that you have waived the client-attorney privilege by disclosing the substance of the Attorney General's advice in a State Procurement Office document "accessible to the public". As an attorney I'm sure you are aware this is the case, and that you have the authority to make, at least, the opinion documents public. If this interpretation is correct, may I have a copy of DCCA's request for an opinion and the resulting opinion to disseminate widely prior to upcoming DCCA hearings regarding procurement code exemptions, preferably in the electronic format in which they were created?

2. When did DCCA, or whomever asked, first ask the AG for an opinion (exact
date)?
Reply:  See response above.
 
The response above only identifies a date when a written opinion was requested, it does not answer my question in that a spoken opinion could have been given to DCCA prior to or soon after the Code's July 1, 1994 effective date. Ignorance to the law is no excuse, and neither DCCA nor the Attorney General's office has established their ignorance, other than allowing the code to be violated.

3. I respectfully request that past directors and DCCA appointed board
directors be deposed, under oath.
Reply:  Your contentions concerning collusion, cover up, anti-competitive
practices, and your request for an investigation, including the depositions
of past DCCA directors and appointed PEG directors, have been referred to
the Attorney General.
 
Thank you.

4. Please provide a page count immediately (not in 10 days!) to avoid
further delay.
Reply:  The page count is one.
 
Thank you

Sincerely,

Jeff Garland

Sincerely,

Mark Recktenwald



                                                                                                                                     
                     jeff garland                                                                                                    
                     <digitaleye@hi.ne        To:       DCCA Director Mark Recktenwald <mrecktenwald@dcca.hawaii.gov>                
                     t>                       cc:       Glen.WY.Chock@dcca.hawaii.gov, Rodney.J.Tam@hawaii.gov, Esther Zukeran        
                                               <ezukeran@dcca.hawaii.gov>, Aaron Fujioka <aaron.fujioka@hawaii.gov>, CTPA President  
                     01/13/2006 08:19          Edward Coll <coll@kauai.net>                                                          
                     AM                       Subject:  Re: Fw: URGENT    Record & Information request.                              
                                                                                                                                     




Glen.WY.Chock@dcca.hawaii.gov wrote:
     Mr. Garland:
     In response to your three questions:

     1) On October 12, 2005, DCCA received an opinion from the Department
     of the Attorney General which concluded that the PEG contracts were
     subject to the State's Procurement Code.  We consulted with the State
     Procurement Office on November 1, 2005, which informed us that it
     concurred with the Attorney General's opinion.  Based on these
     opinions from SPO and the AG, the Department concluded that the State
     Procurement Code was applicable.
Mark, this response does not indicate when DCCA (or whomever) requested an
opinion from the Attorney General, or whether it was the first time. It
does not answer the intent of my question which is to establish the exact
date DCCA became aware that the PEG contracts COULD have to be by bid? My
emailed question to the DCCA Director in May of 2001, "Is DCCA required to
post a public notice or Request for Proposal?", should have required her or
Mr. Sonobe to request an opinion over 4 years ago!! When did DCCA first
become aware that the PEG contracts could have to comply with state
procurement code (exact date)? When did DCCA, or whomever asked, first ask
the AG for an opinion (exact date)?
     2) The Department did not depose prior directors or  CATV
     administrators.  Since current Department personnel do not have
     personal knowledge of events that preceded their tenure, we qualified
     the statement by noting that it was "to the best of our knowledge."
This is a most troubling response seeing as how many responses to questions
to DCCA regarding PEGs were responded to with "I don't recall", and "we do
not maintain that record". For DCCA, "to the best of our knowledge" appears
to have been a stock answer to provide for their plausible deniability, not
the public's best interests. When I asked past DCCA Director Alm if he had
asked for a formal opinion of the AG regarding PEG access corporations'
status as agencies, he said "NO", when asked if he had asked for an
informal opinion he responded "I don't recall". 'Olelo's DCCA majority
appointed board, their staff, and their attorney have expressed concerns
prior to August 2002 to date that their status as an agency could have
implications beyond compliance to HRS 92 & 92f, including being required to
go through state procurement procedures. Did the DCCA appointed board
director's keep their knowledge that they should be going through an RFP
process in order to get the franchise moneys from DCCA?  Your responses
give the appearance that until October 12. 2005 DCCA had not even asked the
question regarding PEG contracts having to follow state procurement code,
which I highly doubt. It appears there is an intentional attempt to cover
up the whole truth of possible collusion or other anticompetitive
practices, or ay least, the ineptness of the Cable Television Division and
the Attorney General's office. If past DCCA Directors were guilty of
collusion or other anticompetitive practices, should they be able to just
get off the hook for illegally dispersing millions of dollars to
organizations they helped create and then controlled by continually
threatening to hold back funds? I think not and respectfully request that
past directors and DCCA appointed board directors be deposed, under oath.
Why would a "private nonprofit" continue to give majority board appointment
power to state government if they weren't colluding with them? Why did a
past DCCA Director threaten to cut off Akaku's funds if they didn't put the
majority appointment clause back into their bylaws, if not to continue
collusion or state control? Why are DCCA meetings with their appointed PEG
access corporation board directors held with no minutes available to the
public? That fact alone creates suspicion of collusion!
     3) A copy of my directive to the Cable Television Division that
     contracts for PEG type services should be subject to competitive
     bidding is not available nor maintained in electronic format. You
     are, however, welcome to view a hardcopy at CATV's office during
     normal business hours or a hardcopy may be reproduced for you at $
     0.25 per page.
Please provide a page count immediately (not in 10 days!) to avoid further
delay.

Even though we have a phone conversation scheduled for today, and you may
answer these questions verbally, I respectfully request a written response.

Sincerely,

Jeff Garland


     Sincerely,

     Mark Recktenwald


                                                                         
  jeff garland                                                            
  <digitaleye@hi         To:        DCCA Director Mark Recktenwald        
  .net>          <mrecktenwald@dcca.hawaii.gov>, "Rodney J. Tam Esq."    
                 <Rodney.J.Tam@hawaii.gov>                                
                         cc:        Aaron Fujioka                        
  12/30/2005     <aaron.fujioka@hawaii.gov>, Hawai'i State Attorney      
  01:27 PM       General <hawaiiag@hawaii.gov>, Esther Zukeran            
                 <ezukeran@dcca.hawaii.gov>                              
                         Subject:        URGENT    Record & Information  
                 request.                                                
                                                                         





     Aloha Director Recktenwald and Deputy Attorney General Rodney Tam,

        As usual regarding PEG matters, DCCA's responses are full of
     apparently intentional ambiguities.

         In your SPO Form-16 Procurement Violation, you state "Until
     recently, DCCA was not aware that the PEG access contracts were
     subject to the State's Procurement Code" (emphasis added). Could you
     please provide me with a more precise date for when DCCA &/or the
     Attorney General's office became aware?

        DCCA also states "To the best of our knowledge, this appears to be
     the first occurrence of this type" (emphasis added). Can DCCA &/or
     the Attorney General's office unequivocally state this is absolutely
     the first occurrence? Did you take a deposition from past directors
     &/or Cable Television Division Administrators they were also unaware
     they were required to follow Procurement Laws regarding PEG
     contracts? If so, may I obtain a copy?

         Under the assurance and safeguards section DCCA states "the
     Director has provided written direction to the Cable Television
     Division that contracts for PEG-type services should be subject to
     competitive bidding pursuant to HRS §103D, unless exempted." May I
     please have a copy of that document in the electronic format in which
     it was created to disseminate widely?.

        Your promptest possible response will be greatly appreciated as it
     will facilitate the public's continued involvement in this democratic
     process, before it is too late. Your response will also help clarify
     whether suspicion of collusion or other anticompetitive practices is
     warranted.

     Sincerely,

     Jeff Garland
     V.P. CTPA




     [§103D-319] Reporting of anticompetitive practices. When for any
     reason collusion or other anticompetitive practices are suspected
     among any bidders or offerors, a notice of the relevant facts shall
     be transmitted to the attorney general. [L Sp 1993, c 8, pt of §2]

  
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