TVR attorney seeks to recall Tavares

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WAILUKU - An attorney who has represented private landowners and business owners in civil suits against Maui County this week announced he is initiating a petition drive to recall Mayor Charmaine Tavares.

In announcing his petition, James Fosbinder did not specify his reasons for seeking to recall the mayor. Under the provisions of the Maui County Charter, a petition does not need to state reasons for a recall.

But Fosbinder referred to a Viewpoint that was published in The Maui News on Oct. 17 in which he accused the mayor of causing the downturn in the county economy and said she should be recalled.

In the essay, Fosbinder referred to statements made by Tavares in a deposition in a lawsuit over her decision to enforce county laws on unpermitted vacation rentals and cited two other issues - county parks department requirements and limits on commercial ocean recreation classes in county parks and state demands for permits for commercial weddings held on public beaches.

Tavares and Maui County Communications Director Mahina Martin said Fosbinder's claims are misguided and misleading, and ignore the mayor's responsibility to maintain public facilities for all of the public.

"This latest action by Mr. Fosbinder is obviously spiteful and self-serving," Tavares said in a written statement. "These are dire times for all counties and for citizens working in all industries. An expensive recall election will not solve the economic crisis.

"Ironically, on the same day that Mr. Fosbinder's negative Viewpoint appeared in The Maui News, Maui was once again recognized as being the 'best island in the world' by readers of the international Conde Nast travel magazine.

"In these troubled economic times, we need to focus on the positive, and work together to protect this beautiful place we call home."

Martin said Fosbinder's Viewpoint neglects to report the outcomes of the legal cases he cites. In the case of Maui Vacation Rental Association v. the county, Martin said the federal court in Hawaii upheld Tavares' decision to enforce county laws that bar unpermitted vacation rentals in residential, rural and agricultural districts.

In a case in which the county acted on a commercial wedding operation, Martin said the case was decided in the county's favor and the wedding business was required to reimburse the county for its legal costs.

The Viewpoint also referred to actions that are being undertaken now by the state Department of Land and Natural Resources without explaining why the Maui County mayor should be held liable for decisions of a state agency, Martin said.

Fosbinder said Wednesday he didn't think there would be any shortage of registered voters willing to sign a recall petition. He needs 16,128 valid signatures, or 20 percent of the 80,638 registered voters for the 2006 general election.

"I don't see why anybody who voted for Alan Arakawa, Kimo Apana or Dain Kane wouldn't sign the petition," he said.

James "Kimo" Apana and Arakawa are former mayors; Arakawa and Kane were defeated by Tavares two years ago.

He foresees the main difficulty in beating the time limit to gather the signatures: 30 days from the submission of an affidavit to the County Clerk, which Fosbinder filed on Wednesday.

He sees his answer as the general election on Nov. 4. The Recall Tavares organization is recruiting volunteers to seek signatures at every one of the 43 county polling places. By intercepting people going to or coming from polls, he said, "that way we know they are registered voters."

The recallers estimate they will need about six volunteers per polling spot, to cover the 11 hours the polls are open. Volunteers must be county residents and over 18.

They also will be required by state electioneering law to keep at least 200 feet from the polling place. Rex Quidilla, an administrator with the state Office of Elections, said the 200 feet are measured not from the door but from the boundary of the parking lot serving the polling site. That will push any petition carriers well away from polling places, generally onto the roadside approaching the polling site.

There are maps of the electioneering boundaries for every precinct at the Office of Elections Web site, www.hawaii. gov/elections.

Fosbinder acknowledges that the petition drive is electioneering, but he said he was surprised to hear that the 200 feet was not measured from the door.

"That sounds unconstitutional. We may have to go to court."

County Clerk Roy Hiraga said Wednesday that he was surprised when he was handed the affidavit giving notice of the intention to seek a recall, since the recall and initiative provisions of the charter have never been used. Should the Recall Tavares group turn in their petitions, Hiraga said he will have to hire temporary workers to certify them. With a permanent staff of only three, his office could not verify all the signatures within the 20 days allowed.

If the required number of signatures is certified, the clerk submits the petition to the County Council and to the officer named in it. If the targeted official does not resign within five days, the council must set an election between 60 and 90 days after it receives the documents.

The standard for recall is high. In addition to having a majority of those voting favoring a recall, at least 50 percent of the voters registered in the "last general election" must participate for a recall election to be valid.

That all raises another question that Hiraga said he could not answer Thursday. Validation of the petition will be based on registered voters in the 2006 general election, but any special election would be held after the 2008 general election, for which there are 85,197 registered voters.

If Recall Tavares does not get its 16,000 valid signatures by Nov. 22, it can have another 20 days to gather more names.

In his Viewpoint, Fosbinder wrote, "Mayor Tavares' attack on every growth sector of our tourist-based economy was bound to create a recession on Maui."

He said Wednesday there are other people behind the recall drive, although for the time being he will be the spokesman and they will not be identified. He said information on the recall effort is at a Web site, www.recalltavares.blogspot.com. Volunteers may e-mail www.recalltavares.gmail.com.

His position drew criticism from county spokeswoman Martin, who said the Viewpoint was Fosbinder's personal views and established only that the mayor is seeking to enforce county laws.

"Mr. Fosbinder says that there are others behind the recall drive, but that their identities will be kept secret," Martin said. "The public has a right to know who is behind this effort. Mr. Fosbinder's personal views, expressed in an October 17, 2008, Viewpoint article published in The Maui News, do not provide any rationale for recalling a duly elected mayor."

She said the vacation rental issue has been pending over the past two administrations, well before Tavares took office. Four years ago in the Arakawa administration, the council considered a bill to allow unpermitted vacation rentals to operate while the council prepared a comprehensive law.

All three planning commissions appointed by the previous mayors recommended denial in 2006, Martin said. In March 2007, the council filed the bill and urged the administration to enforce existing laws, she said.

"Mr. Fosbinder is also wrong to blame the mayor for an economic meltdown that is worldwide and his plan to solicit signatures on Election Day at polling places is disturbing," she said. "Voters would find themselves accosted by him and his supporters.

"It's a state law for a reason: to protect voters from unwelcome intrusions and invading their privacy."

* Harry Eagar can be reached at heagar@mauinews.com. Edwin Tanji can be reached at citydesk@mauinews.com.