LIHU‘E — An overview and update of the Hale ‘Opio Teen Court diversion program turned into a heated meeting at the Kaua‘i County Council chambers at the Historic County Building in Lihu‘e Wednesday. For the last six months, except for
LIHU‘E — An overview and update of the Hale ‘Opio Teen Court diversion program turned into a heated meeting at the Kaua‘i County Council chambers at the Historic County Building in Lihu‘e Wednesday.
For the last six months, except for two teens, the Office of Prosecuting Attorney has ceased referrals to Hale ‘Opio’s long-standing youth diversionary program. Council members wanted to know why, and the explanation took more than four hours.
In an effort to keep discussion within the agenda — or to his opinion of the scope allowed by the agenda — Public Safety Committee Chair Mel Rapozo interrupted council members JoAnn Yukimura and Tim Bynum several times.
“I have the right to speak,” Bynum said at one point, to which Rapozo replied, “I have the right to stop it,” and slammed the gavel, halting a heated exchange between Bynum and County Prosecutor Shaylene Iseri-Carvalho.
OPA stopped referring youth to Teen Court since April 10, when it received an opinion from the County Attorney’s Office, which indicated a potential violation of the law, according to Iseri-Carvalho.
The opinion was provided by Deputy County Attorney Jennifer Winn and approved by County Attorney Al Castillo. Since then the County Attorney’s Office and OPA have conflicted out, and subsequent special counsel provided to OPA released an opinion that it was OK for OPA to continue referrals.
So for a brief period, OPA resumed referrals and sent two youth to Teen Court. But referrals were again shut down after OPA was told by Christopher Lum Lee, program specialist at the state Office of Youth Services, that there were legal issues with the contract between the county and Hale ‘Opio, said Iseri-Carvalho, adding that it would be “absolutely ludicrous” to continue referrals after being advised as such.
Castillo, however, denied the April 10 opinion was related to Teen Court, it was rather about POHAKU, a diversion program that has been overly scrutinized by the council and is currently in limbo.
Based on the material provided about POHAKU, Castillo said it demonstrates too much control of OPA in the program, and this is illegal.
“The distinction in Teen Court, it’s not a program in OPA; it’s a program in Hale ‘Opio,” Castillo told council members.
When Bynum asked Iseri-Carvalho for a copy of the County Attorney’s Office April 10 opinion, she said OPA doesn’t have to provide such opinion because it is an attorney-client privilege.
“If you’re demanding our opinion (provided by the County Attorney’s Office), I have the right to ask for your (County Attorney’s Office) opinions,” Iseri-Carvalho said.
Still, she gave council members one-and-a-half pages of the five-page opinion.
In the piecemeal document that OPA gave council members, Winn states, “Here, the OPA has not been conferred with the express power to create and supervise a pre-trial diversionary program via the charter or statute. Therefore, the argument is that this power is implied.
“The question of whether the power to prosecute carries an implied power to create and supervise a pre-trial diversionary program is one of degree.”
On the following page, Winn cites five court cases. She closes the opinion by stating, “In Hawai‘i, there has been no determination of whether the development of a diversionary program is a legislative, executive or shared function.”
Yukimura said nothing in those pages indicate the County Attorney’s Office told OPA to stop deferrals.
“Young people deserve better,” she said.
‘Mature manager’
Because the POHAKU diversion program had been recently scrutinized by the council, Iseri-Carvalho said she halted referrals to Teen Court after receiving Lum Lee’s opinion.
Iseri-Carvalho said a thread of emails between OPA and Lum Lee confirm that OPA was told of OYS’ concerns with Teen Court. All those emails, she said, were copied and sent to OYS Executive Director David Hipp, who in an email to the council dated Oct. 2 said he never told OPA to halt Teen Court referrals. Hipp said in the email that “if Mr. Lum Lee did, in fact, advise (OPA) there was a purchasing violation, he erred.”
Iseri-Carvalho maintains that Hipp should have had knowledge of Lum Lee’s opinion, since all the emails were copied to him, and still never told OPA to continue referrals.
Hipp also never sent an official written statement to OPA indicating that Lum Lee erred in telling OPA that there were procurement issues. Instead, Hipp said Lum Lee is “new, young employee with OYS,” and that OPA was aware of that.
Yukimura questioned Iseri-Carvalho’s response to Lum Lee’s opinion, asking why wouldn’t a “mature manager” have called Hipp for a follow up rather than leaving potentially 50 to 100 youth without a diversionary option for six months.
Rapozo, however, blocked the discussion, saying that Yukimura had already asked that and he wasn’t going to entertain that.
After a recess, Yukimura said she phoned Hipp, and he told her that the contract with Hale ‘Opio terminated because he received an email from OPA stating there were no referrals to continue the contract with Teen Court.
Councilman KipuKai Kuali‘i said Hipp should have sent testimony in writing.
Iseri-Carvalho said OPA was told it could not proceed because the contract with Teen Court expired Sept. 30.
‘Notice to terminate’
In an official letter from OYS to Iseri-Carvalho, dated Monday and stamped by OPA as receiving it Tuesday, Hipp sent a notice to terminate the contract with Teen Court effective Oct. 31.
“This notice to terminate subject contract … is necessary due to non-performance of required services and a change in the Scope of Services the Office of Prosecuting Attorney is recommending for the current allocation of $15,685. The recommendation for a new program in addressing Kaua‘i’s juvenile justice issues specific to the federal funding allocation under the Juvenile Accountability Block Grant program require the concurrence and/or approval of the mayor,” Hipp states in the official letter.
Last week, the council approved a request for $35,000 for OPA’s brand new Keiki POHAKU youth diversion program. The request took several council meetings to reach a 4-2 approval (Bynum recused himself).
The General Conditions for Health and Human Services Contracts related to Teen Court contract, included in Hipp’s letter, state that “the contract may be terminated because of a reduction of funds available to pay the provider, or when, in its sole discretion, the state determines that there has been a change in the conditions upon which the need for the required services was based, or that the provider has failed to provide the required services adequately or satisfactorily …”
In the letter, Hipp instructs Iseri-Carvalho to coordinate with Ed Chargalaf, of OYS, all necessary close-out requirements for the contract.
“Thank you for the Teen Court diversion program your office has established and continued funding over the years,” Hipp states in his closing paragraph. Teen Court, however, has been around for 17 years, before Iseri-Carvalho was elected in 2008 as county prosecutor.
‘The home for
the youth’
Hale ‘Opio has been operating since 1976, and started Teen Court in 1995, according to Hale ‘Opio Executive Director Laverne Bishop.
From its beginnings until 2007, Teen Court referrals were made by the Kaua‘i Police Department, she said. It was only after Iseri-Carvalho was elected county prosecutor in 2008 that referrals started coming from OPA, according to Bishop.
And with regards to contracts, the nonprofit organization has entered in only two contracts with the county, both of them recently. Teen Court will take referrals regardless of a county contract, Bishop said.
When asked by Yukimura if Hale ‘Opio was lacking funds to continue taking youth referrals, Bishop said, “No, we’re lacking referrals. We’re not in the business of getting money, we’re in the business of serving the youth.”
Council Chair Jay Furfaro said he would introduce a bill next week to appropriate $31,000 for Teen Court.
County Managing Director Gary Heu said there is concern with funding, but the administration will “diligently” look for additional sources.
Despite the lack of a contract with the county, Bishop said Teen Court is ready to accept youth today. “We have never let this go,” she said.
“We are the home for the youth of Kaua‘i,” Bishop said.
First Deputy Prosecutor Jake Delaplane said OPA supports Teen Court and is “fully committed” to ensure the program goes forward.
• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.
